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: 14/2016

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: 16/2016

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.

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.

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.’

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

Author(s): Michal Peno / Language(s): Polish / Issue: 16/2016

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.

Az örökkévalóság vagy a pillanat nézőpontjából?

Somló Bódog mint „az államtudomány embere”

Author(s): Péter Takács / Language(s): Hungarian / Issue: 2/2016

This paper examines the luminous Hungarian legal philosopher, Felix Somló’s theories on the state. It claims that Somló had three theories of state. The first could be reconstructed from the sociological allusions and hints of his first book, titled State intervention and individualism (1903), the second was his theory of state based on legal concepst in a neokantian fashion, explicated in his Juristische Grundlehre (Basic Legal Concepts and Ideas, 1917), and the third is an unfinished theory of a Notes for a Philosophy of State (1919/20). The core idea of the first theory is regulation (which was considered by Somló as interference), the central concept of the second is a so called Rechtsmacht (legal might; which was coined by Somló), whereas the third revolves around the so called eternal truth of history of ideas.

Carl Schmitt i Alexandre Kojève na pragu globalizacije

Author(s): Galin Tihanov / Language(s): Croatian / Issue: 20/2015

Alexan dre Kojeve (1902.-1968.) i Carl Schmitt (1888.-1985.) potjecali su iz prilično različitih miljea, krenuli različitim profesionalnim putovima i pozicionirali se na dva međusobno suprotstavljena pola u spektru suvremenog političkoga mišljenja.

Civic Defender and Local Civic Mediators: Concept Paper and Draft Law

Author(s): Center for the Study of Democracy CSD / Language(s): English / Publication Year: 2002

The publication Civic Defender and Local Civic Mediators: Concept Paper and Draft Law consists of both a concept paper and a proposal for a draft law for the establishment of the institutions of the Civic Defender and Local Civic Mediator in Bulgaria. It is the result of the extended research work carried out by the Law Program of the Center for the Study of Democracy during the period 1998 - 2002. The concept paper and the Draft law reflect the opinions and recommendations of Bulgarian and foreign experts, politicians, representatives of state institutions and non-governmental organizations provided at the numerous public discussions, meetings and consultations during this time.

Classical Social Theory and Ideas of Responsibility and the State in France and Germany

Author(s): Roger Coterell / Language(s): English / Issue: 1/2013

Social theory can aid comparative legal studies by revealing currents of social ideas in which law develops. A comparison of major contributions to French and German social theory between the mid-nineteenth and the early twentieth century presents striking contrasts in understandings of the nature of legal responsibility and the function of the state. It shows two different movements of thought: one elaborating a view of law mainly as a technology of government overseeing and co-ordinating individual interests; the other emphasising the law’s importance in nurturing social solidarity and facilitating collective responsibility.

Concepția politico-juridică a lui Montesquieu

Author(s): Paul I. Demetrescu / Language(s): Romanian / Issue: 1/1955

Confrontation Between Judicial Activism and State of Exception

Author(s): Alexandre Pedro Moura D’Almeida / Language(s): English / Issue: 15/2017

The judiciary has excelled in the international and national scene, reaching role of great importance, thus creating opposition to the legislative and executive powers. The center of gravity of the sovereign power of the state moves toward the judiciary, that happens to have a more active role and controlling of the others powers, but also appears as a great defender of social and fundamental rights causes, seeking to make an effective constitution. Its great public notoriety has attracted great distrust of various sectors of society, especially by the two powers that have an increasing interference. Arises, therefore, a speech that the judiciary would be reversing into a big and uncontrollable power, increasing the suspicion that now it would be living in a real dictatorship of the judiciary through judicial activism. There is a growing concern with the expansion of activism and the role of the judiciary. The purpose of this work is to conceptualize and approach the judicial activism and the state of exception to search and reveal if there is any similarity, to then draw up a possible answer to the concern of forming a dictatorship of the judiciary. The state of exception is one of the rule of law paradoxes, while activism is a political manifestation of the judiciary. The similarity between the institutes appears as appalling in a dynamic expansion of political power of a state institution exercising judicial function, putting in check who would be the sovereign in a rule of law and democratic state.

CORRELATION OF NORMATIVE RESOLUTIONS WITH NORMATIVE LEGAL ACTS

Author(s): KARATAYEV TURDALY ZHAKSYLYKULY / Language(s): English / Issue: 4/2013

In the given article the issues concerning normative resolutions which are given by the Supreme Court of the Republic of Kazakhstan according to criminal cases are pointed out. Th e structure and mechanism of normative resolutions are discussed. Correlation of normative legal acts are investigated. Normative legal acts consist of legal norms, they regulate and manage social relations. It means that, as the normative legal acts play an important role on the judicial sphere, they create, change the norms and even can stop their activity. Here we may include constitutional laws, codes, laws, all charters of the President of the Republic of Kazakhstan which have legal power. Normative resolutions are equal for all, according to definite cases it is used not for one person, but for several people. Also, normative resolutions are used in accordance with legal acts, and until the used norm loses its power it can have defi nite power.

CRIMINALIZATION OF CORRUPTION: PHILOSOPHICAL AND LEGAL FACETS

Author(s): Aleksandras Dobryninas / Language(s): English / Issue: 90/2016

The article discusses philosophical, historical and social issues of corruption. The authors analyse the peculiarities of perception of corruption in different paradigms of criminal justice: classical, positivistic, and constructionist, as well as its respective interpretation in terms of vice and sin, wrongful conduct, or conflict between public and private interests. The analysis presented allows to conclude that criminalization of corruption has its own legal logic and reflects existing social cultural context, and due to this reason cannot be considered to be a universal instrument of dealing with conflicts between public duties and private interests.

Cseppben a tenger, tengerben a csepp

Horváth Barna, a szociológus

Author(s): Ágnes Zsidai / Language(s): Hungarian / Issue: 2/2016

Barna Horváth’s (1896–1973) synoptic social- and legal philosophy, that coexamines the neo-Kantian epistemology and methodology together with the pragmatic-empirical (legal) perspective motivated by the Anglo-Saxon tradition, is one of the undisputedly most unique theory of the Hungarian bourgeois intellectual history, however, it is judged most controversially by the international and domestic jurisprudence. The scientist is experiencing and interpreting the social- and intellectual historical situation of his age and his own personality within it, and also the thinking through of this as “embodied paradox”. This study aims to reveal how Horváth, with the help of the synoptic bridging of the high tension of the ’hiatus irrationalis’ that is between necessity and freedom, and fact and value, establishes the concept of society, and the various objectivations, and principles of its progress, and furthermore, he lays the grounds of the structure of sociology that analyses it.