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The aim of the article is to present two opposing visions of the common good (value) in the history of political and legal doctrines. Such outline of extreme positions allows the author to assess the wide range of doctrinal differences in particular epochs and to impose the principles of the rule of law expressed in art. 2 of the Constitution in the historical tradition derived from the ancient republicanism and political and legal thought of the Middle Ages and which absorbs the postulates of modern liberalism, republicanism and conservatism, based on the democratic model.
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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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The article provides criticism of theory and method proposed in the monograph of prof. Alfonsas Vaišvila. The author of this article has a notion that a research work proposing particular conception, theory or method may be evaluated taking into account the following aspects: to what extent the provided conceptual constructs are systematically completed, comprehensive and suitable for use, as well, how precisely, interesting, informative and originally the material reasoning and explaining the ideas is submitted. Hence, the criticism of the monograph provided for in the article is based on evaluation of adaptability and versatility of the proposed constructs, as well doubts arising during the analysis whether the construction of the conception is correct (first of all, the reasoning, and at the same time – reliability). Upon the discussing in detail particular shortcomings of the monograph, the conclusion is that the material provided is not convincing upon any of the previously mentioned aspects. Notwithstanding the declared aim, the work fails to provide a solid systematic theory. Although the method is proposed, too many exceptions are to be made. It is very important, that these exceptions seem to be formulated in a rather arbitrary way. The proposed method also lacks freshness, as it repeats and develops not only the previous publications of the author of the monograph, but as well ideas of other authors (particularly, of Karl Marx and Rudolf von Jhering). And the “achievements” of states which apply (for example, China) or which did apply the method are not inspiring at all (at least in the field of human rights). Evaluating the presentation of the material it was noticed that the work is penetrated with personal attitudes and contains factual mistakes, inaccuracies and other indecorums. Although there are some new, interesting elements, they do not prevail. As well, it is very important that the monograph raises additional ethical doubts, related with stimulation of intolerance and discrimination, which significantly reduces the versatility of outlook of the proposed conception (particularly the authentic application thereof). Presumably the majority of supporters of contemporary human rights concept will regard the conception of prof. Alfonsas Vaišvila as merely unacceptable.
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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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C’est étonnant comme les principes hegeliennes de la philosophie du droit, développés par Hegel, dans un manuel qui a franchi l’aula de l’Université et s’a adressé, alors, dans le milieu du XIXème siècle, en même temps, au monde scientifique et au public, soient tant simples ! Il s’agit de l’ossature juridique de la réalité et de l’État, d’une série d’éléments de droit naturel et de science de l’État, que le grand philosophe les construise dans une architecture philosophique exacte, rigoureuse, mais subtile et profonde, spécifique de la méthode élaborée déjà dans la Science de la logique. Certainement, Hegel, dans son entier démarche, a en vue, aussi, une catégorie de confrontation entre des certaines vérités et d’autres vérités de même façon, qui sont répandues de autres parts. Mais dans le droit et dans l’éthique de l’État, la vérité est aussi vieille comme il est relevé dans la morale publique et en religion. Relire les principes de lesquels écrivait Hegel dans l’époque des lumières est, croyons-nous, bénéfique pour la complexité d’aujourd’hui du notre monde juridique et de ses interconnexions avec le reste de l’humanité.
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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 paper examines the question under what conditions amnesty laws can be justified for the sake of peace, and what those conditions may imply in the case of Kosovo’s amnesty law directed at its northern break-away region. It appraises the moral justifications of amnesty laws, their international legal justification, and the political context and logic behind them so to test the hypothesis that peace at the expense of justice can be justified, in this case through Serbia’s and Kosovo’s integration into the European Union (EU). Amnesty laws are found to be balancing acts between political expediency, moral considerations and the international legal order. In North Kosovo’s case, the law risks undermining an already weak rule of law, exacerbating preexisting corruption, while failing to resolve tensions between its questionable political expediency, dubious morality and doubtful international legality.
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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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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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