A jogtudomány természete

Komplexitás, modellértékűség: eszmények, korlátok

Author(s): Csaba Varga / Language(s): Hungarian / Issue: 2/2016

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.

A kolozsvári egyetem szerepe a magyar jogbölcseleti gondolkodás megújításában

Author(s): József Szabadfalvi / Language(s): Hungarian / Issue: 2/2016

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.

ABDICATIO HEREDITATIS IN IURE POLONIA ZRZECZENIE SIĘ DZIEDZICZENIA W POLSKIM PORZĄDKU PRAWNYM.

Author(s): Radoslaw Zych / Language(s): Polish / Issue: 2/2016

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.

Adresaci roszczeń z art. 446 Kodeksu cywilnego o naprawienie szkód wyrządzonych przez samobójcę

Author(s): Aleksander Czapski / Language(s): Polish / Issue: 4/2016

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.

ALUZIVNO ZNAČENJE ZAKONODAVNOG TEKSTA (IŠĀRETU-N-NAṢṢ) U HANEFIJSKOJ PRAVNOJ ŠKOLI

Author(s): Šukrija Ramic / Language(s): Bosnian / Issue: 14/2016

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.

AN EARLY CRITIQUE OF KELSEN`S PURE THEORY OF LAW: SLOBODAN JOVANOVIĆ ON THE BASIC NORM AND PRIMACY OF INETRNATIONAL LAW

Author(s): Boris Z. Milosavljevic / Language(s): English / Issue: 3/2013

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.

Analele Universității București – Seria Drept (AUB)

Frequency: 1 issues / Country: Romania

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.

Analýza systému vnitřních předpisů a řídících aktů v ozbrojených silách (Část 1.)

Author(s): Dalibor Nový / Language(s): Czech / Issue: 4/2013

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.

Andrzej Walicki, Zarys myśli rosyjskiej od oświecenia do renesansu religijno-filozoficznego, Wyd. Uj, Kraków 2005, 862 strony.

Author(s): Ireneusz Stanislaw Grat / Language(s): Polish / Issue: 1/2008

Review of: Andrzej Walicki "Zarys myśli rosyjskiej od oświecenia do renesansu religijno-filozoficznego"; Publisher: Uj, Kraków 2005, 862 pages; by: Ireneusz S. Grat

Applying Confirmation Theory to the Case against Neurolaw

Author(s): Anton Donchev / Language(s): English / Issue: 1/2018

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.

Apylinkės teismo nutartis dėl raidės „W“: atvejo analizė precedento doktrinos aspektu

Author(s): Johanas Baltrimas / Language(s): Lithuanian / Issue: 89/2015

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.

Arab customary law and the modern Western idea of restorative justice

Author(s): Ewa Górska,Jan Bazyli Klakla / Language(s): English / Issue: 1/2017

Arab customary conflict resolution and the alternative Western approach to dispute resolution are both the result of a similar way of administering justice – a restorative justice paradigm. Thus, we argue that it is not a new or a strictly western concept given that its fundamental values or even structures have existed in the customary laws of different cultures, like Arab culture, for centuries. In this article, we compare Western restorative justice institutions with the Arab customary conflict resolution process (sulh) used in contemporary Palestine.

Argument „semantycznego ukąszenia” a teoria prawa Jerzego Wróblewskiego

Author(s): Adam Dyrda / Language(s): Polish / Issue: 1/2010

Ronald Dworkin once criticized legal positivists for that their theories are founded on a mistake called “the semantic sting”, which claims that legal philosophy, as a silent prologue to every decision of law, cannot be only a semantic account to the word ‘law’. The article presents Dworkinean argument (and its most influential critique of Herbert Hart) and examines whether Jerzy Wróblewski’s legal theory (in its descriptive layer similar to the theory of Herbert Hart) is susceptible to “the semantic sting”. Finally, the answer given is based on a particular solution: Jerzy Wróblewski’s concept of rationality of legal decision appliance. The answer is in accoradance with argumentation of soft positivists, such as Herbert Hart or Jules Coleman, and is based on the acceptance that, even if Dworkin’s argument is meaningfull, it still does not apply to the theories presented by the soft positivists. The controversy whether a particular theory is “semantically stung” is de facto a dispute over a proper methodological approach to legal theory and a relation in which such a theory remains to interpretative jurisprudence of Ronald Dworkin. In this case we can treat Jerzy Wróblewski’s theory as a metatheory, which deals with theoretic disagreement over the grounds of the law, while deciding the case.

Argumentavimas remiantis teisės principais: atkuriamasis ir plėtojamasis būdai

Author(s): Johanas Baltrimas,Mindaugas Lankauskas / Language(s): Lithuanian / Issue: 85/2014

In his dissenting opinion in Lochner v. New York case, O. W. Holmes famously stated that general propositions do not decide concrete cases. There are many others who claim similarly. Among them F. Schauer states that such concepts as liberty, equality do not strongly determine answers in legal questions – although not totally vague, they require additional premises in order to be applied in concrete cases. This study, among other questions, focuses on what these additional premises are when it comes to application of legal principles. Besides this, a goal is raised to seek out what views on application of legal principles are dominating in jurisprudence. Perhaps the most important topic in the study is the matter of two perspectives to reasoning with legal principles. One of them is linked with judicial restraint, it is based on a view that contents of a legal principle can be discovered through earlier cases where it made impact on decisions of judges or legislators. The other perspective is based on argument that positive law (the official and explicit legal texts) is not sufficient for proper dispute resolution and this is where legal principles come to aid – they are the artery through which law is supplied with moral, practical reasons. Based on these views the reconstructive and developmental method to apply principles are contemplated. The former is perceived as analysis and comparison of earlier cases where the disputed principle had impact on judge‘s or legislator‘s decision. Among factors which ought to be evaluated are similarity of these cases to the case which is being dealt with and how widespread is the principle (the variety of these cases). The developmental method is characterized as relying on factors which lie beyond boundaries of formal explicitly expressed law (practical arguments, arbitrator‘s inner sense of justice, etc.). Proper application of this method inter alia can be ensured by the principles of J. Rawls‘ inner position, by arbitrator‘s dissociation from peripheral inappropriate, subjective factors. Evaluation of these methods leads to conclusion that the reconstructive method contributes to legal certainty, easier foreseeing of judicial decisions, includes lesser risk of impartiality and similar factors, so it is superior when there is no or minimum need to develop the law. However, developmental method has the advantage of ensuring material justice and practical outcomes of judicial decision when it comes to cases where there is a strong need to develop the law.

ARISTOTELOV USTAV ATENSKI

Author(s): Dževad Drino / Language(s): Bosnian / Publication Year: 0

Athens in the classical period of Hellenic history was by far the most developed city of Helena, and its democratic system of making important decisions in the Assembly as well as their implementation, was a role model not only in the Hellenic world. Aristotle does not follow his teacher Plato nor Xenophon who do not discern difference between the system of government in the household and the polis. Polis is the community of equal people where relationships create free citizens who are also representatives of their own households, families or the territorial units (topics). Aristotle in the Rhetoric shares laws into general (natural) and specific, those which individual nations defined to themselves and for themselves which could be written and unwritten. Constitution of Athens is the only surviving piece of the rich Hellenic and legal history. In the following lines we will try to explain what this work contains and why it is important even nowadays after two and a half millennia.

Around the Bloc: Uproar at Kazakhstan Activists’ Trial

Author(s): / Language(s): English / Issue: 01/12/2016

Reporters are now barred from attending hearings of the two men charged with ‘inciting ethnic strife.’

Atskirosios nuomonės lietuviškajame teisės diskurse: prakseologinės įžvalgos

Author(s): Egle Maurice / Language(s): Lithuanian / Issue: 85/2014

Praxiological insights about the strength and justification of arguments, as well as about the effectiveness of argumentation are formulated in the article. Praxiology is understood as a science about purposive and conscious human action; it is based on the presumptions that humans are acting beings, they are able to take decisions according their preferences. The methodological part opens the research. Few methods that could be useful when one investigates argumentation process are described here. Content analysis enables one to identify notional elements of the discourse. Typology of argument schemes and critical questions associated with argument schemes are useful when one recognizes the type of argument and evaluates its strength. The inner structure of argument could be analyzed and visualized with the help of argument trees. The research focusses on the 45 dissenting opinions that are presented by judges in the civil, criminal, administrative and constitutional jurisdictions and published during the period of 2009-2013 in Lithuania. The fact of the presence of the dissenting opinion is classified as a criteria that indicates the controversy of the case, so called hard case. Texts of the dissenting opinions are analyzed having in mind two tasks. Firstly, the identity of the judge and his (her) attitude towards the decision of majority are investigated. The analysis showed that judges exploit personalized way of communication, rhetorical elements, and at the same time they are keeping themselves within the boundaries of ethical behavior; the implicit or explicit – first of all in the constitutional jurisdiction – respect towards the decision of majority is conveyed. Secondly, the normative (deontic) justification of arguments is looked for in the texts of dissenting opinions. The analysis showed that judges mostly use value-based argumentation, explicate principles and objectives to be achieved or consequences to be avoided. This value-based argumentation is classified as a kind of proper and strong justification, as this way of arguing is in line with the requirements of deontic logic and with the and published ideas of legal thinkers, to name but few – David Hume, Hans Kelsen, Robert Alexy.

Autonomia – przymus – granice karania (uwagi na tle filozofii Josepha Raza)

Author(s): Michal Peno / Language(s): Polish / Issue: 4/2016

This paper suggests that Raz’s concept of autonomy can be used in the philosophy of criminal law. Certainly, criminal law has limits. ‘Harm principle’ is one of the most important proposals for principled limits to the criminal law. Joseph Raz uses the harm principle in the context of the concept of the personal autonomy. It can be seen that his theory explains (partly) the problem of the justification of punishment and its limits (in the liberal societies). It is possible to justify the criminal law (or punishment) as an method of protection ‘collective goods’, and even liberal and democratic ordo iuris. It can be said that the law must be in some sense neutral. On the other hand, Raz claims the law must protect personal autonomy. This paper suggests that according to Raz’sphilosophy of law a state might use criminal law to promote this morality which is coherent with the concept of the person as an autonomous (self-government) agent. Moreover, the article briefly examines three problems connected with punishment, i.e. axiological pluralism, paternalism and legal moralism, and their consequences for the practice of punishment (in the context of criminal policy).

Az applikáció mint jogképződés

Author(s): Károly Veress / Language(s): Hungarian / Issue: 2/2016

With its starting point in a discussion of the differences between the contemporary viewpoints held by E. Betti and H.-G. Gadamer, my study is aimed at outlining the productive possibilities of Gadamerian philosophical hermeneutics with respect to the response relationship between legislation and law enforcement. My argument is that the hermeneutical process of application, which also entails interpretation and understanding, unfolds as actual legislation, while influencing every participant of the legal situation in a formative and enriching way. In the last part of my paper I will address the historical dimensions of the process in connection with the Betti–Gadamer debate about the relationship between hermeneutics and legal history.

Az ígérő jog Somló Juristische Grundlehréjében

Author(s): Zsolt Zodi / Language(s): Hungarian / Issue: 2/2016

Felix Somló is beyond doubt the “representative man” of Hungarian legal theory, and this is mainly due to his magnum opus, the 500 pages long Juristische Grundlehre. The unique feature of the work is, that it is using John Austin’s “command theory” of law as a theoretical basis, which, at that time was outstanding in the German Kulturkreis. Somló develops Austin’s theory in many respects. One of his main innovation is, that according to him, the law is not only comprising commands, but it also contains promises of the sovereign. The article deals with this part of the theory.In the first part I analyse the theoretical background of promising law. (Versprechensrecht). Here I demonstrate that although the promising law was a known notion in the German legal literature before, (e.g. from Jellinek ‘s theory of “self-obligation” of the state), Somló elaborated a unique theoretical construction, where he connected Jellinek’s theory with Reinach’s theory of social acts, and with Stammler’s theory of normative claim (Geltungsanspruch).In the second part the article recapitulates, and illustrates with figures how does the theory functions in different legal fields.In the third part I analyse the theory itself critically. Here my conclusion is, that the attempt to integrate the neo-Kantian methodological foundation with Austin’s concepts, and with the theory of social acts necessarily brought a huge internal tension to the theory. As a contrast at the end of the paper I shortly describe Herbert Hart’s attempt to exceed Austin’s theory, and the differences between his, and Somló’s theory.