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The article discusses equitable law with reference to the perspective of the system of statutory law. The author founds the substantive theory of equitable law on the following values: truth, good, justice and human dignity. The paper defines the understanding of these values. Then, it indicates that they should be respected in legislative activities (in lawmaking) as well as in the application of law so that the law (norms) and decisions should be equitable. It is also emphasised that equity is “an instance” that can protect the man and his dignity – the dignity of the human person.
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Komplexitás, modellértékűség: eszmények, korlátok
Science is the systematic processing of knowledge on the world, sensed by human perception. The humanities, as peculiar part of scholarship, are based on the generalisation of historical experience. While scientific knowledge tends to get generalised, experience is particular from the beginning: it is defined from wherever and whenever it has been gained (or by what has been experienced hic et nunc), so it is limited in generalisability. As a subject of legal scholarship, law is (1) a global phenomenon embracing society as a whole, which is (2) able to settle conflicts of interests that emerge in social practice as fundamental, while (3) prevailing as the supreme controlling factor in society. Law – taken as (a) normatively considered social behaviour, (b) positivation, (c) decision making and/or enforcement by the authority, as well as (d) their commentary/doctrine – is an accessory subject of legal scholarship at the most; in no way it is an internal part thereof.Based on experience – as to its ideal type, best exemplified by the English tradition – legal scholarship is historical and comparative, directed by theoretical considerations. Systemically developed concepts, principles and institutions, ready to generalisation – best exemplified by the Latinic/Germanic tradition – can only be built on the former.All its foundation is provided by the ideal of ordo, developed by the world concept of the given society/culture. In its concretisation, particular legal sciences are formulating notions, principles and institutions. This is textual analysis in so much the inquiry is historical; this is empiric in so much it is of a social scientific character. Their scholarly developed connection is at the level of “legal science” only provided that it transcends the accidentality and practice-dependent variety of individual legal cultures and national laws. No law in books or action can be more relevant to it than any engineered product to exact sciences, for all these are nothing but parts of practical action or the policy thereof.Jurisprudence, taken as the conceptual modelling of a part of reality, is a historical offspring of the ideal of scientia materialised first in geometry and second in theology. Or, it is a kind of theoretical doctrine: potential and competitive, albeit organised into a coherent system. And as the humanities in general, it is at the same time an ideal-type reflection and form-giving factor – that is, genuine artificer – of the man’s world.
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The purpose of this study is to review the role of the University of Kolozsvár in renewal of Hungarian legal philosophical thinking. So that will be presented the activity of Viktor Jenei, Rudolf Werner, Bódog Somló, Gyula Moór, Barna Horváth, István Bibó, József Szabó in Kolozsvár.
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The question of legal education is recognised as important along various dimensions and thus has been in the focus of attention of numerous distinguished legal scholars and practitioners all over the world. The problem of legal education includes not just methodological issues, but also the issues that are par excellence philosophical in nature. Legal education has a specificity that arises from the nature of law and its complexity, and is related to the personal dimension of this education. The process of education should be organised in such a way that students should be in contact with members of the legal community whose authority, moral and subject matter-related attributes play a vital, formative role in legal education. The author tries to confront the didactics-related reality with ideals and postulates present within this field. Yet, it is revealed that such a reality is hidden below a “thick layer” of myths, which have grown around legal education. These myths blur the real picture of lawyers’ education, creating a kind of legal education mythology. Two types of systemic legal myths are indicated. The first one is built on the paradigm of university legal education. The other type is based on the paradigm of university studies.
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According to the Roman legal principle: “Semel heres semper heres”. However, the renunciation of inheritance is one of the few institutions of inheritance law, which were not known in Roman law. There are situations in life in which the testator would like to deprive the shares in the inheritance a person with whom he lives in the best possible relations. When there are no grounds for disinheritance of the child, you can try to persuade them to renounce their inheritance. This article is about renunciation of inheritance in Polish legal order. The author will examine in this article the individual elements constructing this agreement. Disputes outlined in considerations may be helped for a discussion on the need for changes in normative regulations on research issues.
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Doktryna i Magisterium Kościoła, opierając swoje nauczanie na Starym i Nowym Testamencie, od samego początku istnienia Kościoła jasno i precyzyjnie stawały w obronie świętości i nienaruszalności ludzkiego życia od samego początku jego istnienia, czyli od poczęcia w łonie matki aż do naturalnej śmierci. Współczesne spojrzenie na zagadnienie wolności człowieka i jego wynaturzone odniesienie do możności decydowania o wszystkim, co z człowiekiem jest związane, sprawiło, że problem aborcji, jednoznaczny i precyzyjny w nauczaniu Kościoła, stał się dla wielu ludzi nie do pogodzenia z nowoczesną wizją człowieka i świata. W takim kontekście niezwykle ważne wydaje się nam, by skupić naszą uwagę na zagadnieniach, które dotyczą skutecznego przerwania ciąży, a jednocześnie jego aspektów prawnych w prawie karnym Kościoła.
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This study tries to give a general framework about justice. For this aim, it discusses the etimological dimensions of the word of adalet, justice; and it is attempted to confirm the various senses of this word by referring some relevant verses in Quran. Following that, the concept is discussed in details in the relationship between Ethics and Law. In the second part of the article, it is referred to the unity of reason and heart in Quran, mentioning a justice in the Islamic sense. It takes some relevant verses contain particular judgements about justice to reach the objectivizations of it. It is concluded that justice is one of the most important parts of Islam and the consciousness, adding it is an eternal and ideal value.
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The article analyses the claims based on Article 446 Civil code in case of a suicide assassination. At the beginning it shows the issues of inheritance of property rights and obligations in case of death of a decedent. Next, it focuses on the possibility of inheritance property obligations of the suicide assassin towards the next of kin of the victim of the assassination. At the end it presents a solution for the case where claims under Article 446 Civil code are not satisfied.
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This paper examines the Hanafi scholars’ approach to the alluded meaning (isharat al-nass) of a legislative text, and the implications of such an approach for the legal norms the Hanafis derived through ijtihad. The first part of the paper discusses the issue of possible textual indications (al-dalalat) within a legislative text, and then the concept of allusion in the Hanafi School from the linguistic and terminological point of view. Providing the examples of alluded meaning we show the way in which the Hanafis used alluded meanings in their argumentation. We also elaborate on the status of isharat al-nass in the Hanafi Madhab, and the way of giving preference in case of contradiction between isharat al-nass and ibarat al-nass. At the end of the paper we provide the conclusions derived from the study.
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The keystone of Kelsen’s Pure Theory of Law is his doctrine of the basic norm. The basic norm is therefore the subject of Jovanović’s critique of Kelsen’s entire theory. According to Kelsen, the basic norm precedes the authority of a state, since it is positioned between the factual social force, which establishes the authority of the state, and the state. According to Jovanović, there is neither the law without a state, nor a state without the law; hence neither can Kelsenian legal norm, perceived as a norm prior to the state, be a positive legal norm, but an abstract, natural law norm. Jovanović discusses and criticizes Kelsen’s solution to the problem of the relationship between national and international law, which depends on the establishment of the basic norm.
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In March 1939 issue no.1 of the Bucharest Law School Annals (the then name of the journal) was published as a series of quaterly booklets presenting the results of the scientific research conducted by the academics and the students, as well as reports on the most important events in the then legal and scientific environment. The publication aimed at creating and maintaining a “scientific movement useful to progress”. That aim has been preserved to the day, so the current “Bucharest University Annals – Law Series” (AUBD) publishes studies and research papers written by the academic staff and also by colleagues from other universities at home and abroad, young researchers, students and PhD students as well as information on legal topical isues, events organized by the Law School and the students’ results in international compatitions.
After a long period of time, the past 1948 period, when only a yearly issue was published, the journal resumed its quaterly publication in 2000. The members of the Scientific Board are well-known representatives of the European legal world. As of 2006, the papers published in our journal have been accompanied by abstracts in French and English, and, as of 2009 each article has been accompanied by a technical section including abstracts and key words to facilitate thematic search. Moreover, the contents of the journal, the abstracts and the key words are available on the journal website: drept.unibuc.ro/aubd.
As most of the articles are published in English, French, German or Italian, our journal is currently exchanged with almost 100 libraries and universities abroad.
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The journal Annals of the West University of Timisoara – Law Series is a periodical comprehensive publication in law, biannually published, edited by the Faculty of Law, West University of Timisoara. The journal is structured according to sections that reflect the scientific work of several valuable professors in the field of private law and public law, plus the contributions of doctoral students or other young researchers.
Scientific events organized by the Faculty of Law, West University of Timisoara, as well as events marking the recognition of the scientific activity of its academic body, such as awards and distinctions, are also presented within the pages of the journal. Moreover, the journal’s content reflects the achievements of the Doctoral School within the Faculty of Law, West University of Timisoara.
The editorial team consists of professors specialized in the fundamental fields of law. A body of specialists ensures a comprehensive overview of the studies received for publication.
The journal is edited under the auspices of Universul Juridic Publishing House, one of the most prestigious law-oriented publishing houses in Romania.
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Article analyzes the relation between legal and internal regulations and acts in public administration focusing on their hierarchy, quantity, liability in specific area of armed forces. There is wide range and amount of relatively autonomous service regulations and official channels (internal orders, guidelines, advices). Although any internal regulations have to be in accordance with superior sources of law, relation between legal and internal level is not clear. Article exemplary outlines, that consistent system of internal rules is based especially on running and immediate updates to meet harmony with legal code.
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Review of: Andrzej Walicki "Zarys myśli rosyjskiej od oświecenia do renesansu religijno-filozoficznego"; Publisher: Uj, Kraków 2005, 862 pages; by: Ireneusz S. Grat
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The subject of the article is the analysis of a specific feature of contemporary political and administrative power. As analytic categories the author uses Foucaultian concepts of power discourses: sovereignty: the type of individualized power which strives for self-conservation (pre-modern type of power) and governmentality – the type of non-individualized power the aims of which are control and management of the population (modern type of power). Contemporary power – the bureaucratic power described by M. Weber etc. – seems to be the type of governmentality. But in this field emerges a new type of sovereign power legitimized by the discourse of governmentality – management and protection of the population. Its examples are analysed by G. Agemben i J. Butler indefinite detention in Guantanamo. In this articles, the author focuses on symptoms of the new type of sovereignty in day-to day government action – the practice of the polish organ of compulsory social insurance – Social Insurance Institution (Zakład Ubezpieczeń Społecznych).
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The aim of this paper is to analyze the „possibility puzzle” presented by Shapiro (2011) in the context of the debate between conventionalism and non-conventionalism in speech act theory. Conventionalism claims that for every speech act there is a pattern (convention) which determines its illocutionary force. To perform a felicitous speech act is to fulfil necessary and sufficient conditions for this particular speech act. Non-conventionalism criticizes the view that for every speech act there is a conventional pattern and hidden conditions, which are to be fulfilled. This view maintains the conventional thesis for the so-called strict conventional speech acts (e.g. performatives), but negates using universal quantifier for so-called communicative speech acts whose aim is, in short, to express an intention and force someone to act by virtue of this intention. As in (Shapiro 2011), Phil said: in order for someone to have the power to make, change and apply rules, there has to be a rule that empowers someone to do so. This objection concerned „The First Legislator” only from the conventional perspective on speech acts. If it can be maintained that The First Legislator’s speech acts may be non-conventional, then Phil’s argument misses the point. Finally, I will emphasize that only lawyers analyze „the very first speech acts” whereas for philosophers, the problem of e.g. „the very first question” is less absorbing.
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Neurolaw is the emerging research field and practice of applying neuroscientific knowledge to legal standards and proceedings. This intersection of neuroscience and law has put up some serious claims, the most significant of which is the overall transformation of the legal system as we know it. The claim has met with strong opposition from scholars of law, such as Michael Pardo and Dennis Patterson (2011), who argue that neurolaw (and neuroscience more generally) is conceptually wrong and thus perceive most of it as “nonsense” (Patterson, 2003). I expose a flaw in Pardo and Patterson’s arguments by means of confirmation theory. My main point is that Pardo and Patterson use implicit hypothetico-deductivism in their attack on neurolaw, and that we have good reasons to doubt the employment of such a model, because it faces serious theoretical problems. I then demonstrate how the alleged problems associated with neurolaw disappear if we use a quantitative probabilistic account of confirmation. I also explain why it provides a better account for the way the legal system actually works.
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The article deals with the issue of Lithuanian case-law on the matter of spelling in personal documents with letters from non Lithuanian alphabets or disregarding rules of Lithuanian language grammar. Question of spelling foreign names in documents is of big political im-portance, since it has received a lot of public attention, in last few decades there were over 20 unsuccessful attempts to pass laws which lay down relevant regulation. Particular focus of research is drawn upon Lithuanian case-law, where recently a judi¬cial precedent occurred, which conflicts with earlier rulings. In a few cases the Lithuanian Supreme Court ruled for Lithuanian-only spelling in documents, but in 2015 a court of first instance (Vilnius county court) delivered a contrary ruling. It did not receive any appeals, therefore, came into force. Such status causes ambiguity when deciding, whether spelling of names in documents not in Lithuanian is prohibited by law. The main objective of the article is to present relevant reasons for this question as far as it concerns the doctrine of judicial precedent. Accordingly, relevant statutory law and legal doctrine are evaluated. This led to finding that, following the conventional view, earlier case-law provides legal principles which should be currently applied. On the other hand, legal principle from the recent precedent could be binding if there was an adequate basis to overrule previous precedents. In the instant case such basis can be found in the fact that the legislature unjustifiably delayed the enactment of relevant rules and this caused a legal gap. Such unjustifiable delay may give courts the power to fill the legal gap by way of interpretation. However, presence of these conditions for overruling are arguable and the most appropri¬ate solution in this case is for the legislature to pass the law, which lays down the rules for the issue in question. Demand for such law is increased by the fact that current legal circumstances create uncertainty and may cause infringements of the right to equal treatment by the law.
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