Tamás Nótári: Handling of Facts and Forensic Tactics in Cicero’s Defence Speeches
Passau, Schenk Verlag, 2014, pp. 304
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Passau, Schenk Verlag, 2014, pp. 304
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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.
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This article discusses and analyzes several problems relative to constituting of organ representation of associations and foundations: original election of organ representative by statutes of association and constitutive act of foundation; determinaton means of using of representative power; original election of members of organ representative; consent of members of organ representative with the election; constitutive effect of court registration of associations and foundations relative to constituting of organ representation.
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The article named “The European Public Prosecutor’s Office – first step towards establishment of common European criminal justice” offers a concept including ideas for the structure, competence and legislation about the European Public Prosecutor’s Office (EPPO). The concept is based on the idea for the integrated model of this new European institution but with its own vision about the interaction with the national judicial institutions. First of all, the article indicates the basic principles the structure of the EPPO should follow. On the second place, the article outlines the concrete results which can be achieved by implementing these basic principles of organization and functioning of the EPPO and which are the main goal pursued by establishing the EPPO. On the next place, the concrete steps and the appropriate mechanisms to realize these results are explained. Finally, concrete conclusions about the advantages of this concept, about its future effect concerning the establishment of common European criminal justice, as well as about the difficulties that can appear in the process of its realization are drawn
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The article concerns the supposition that ratio naturalis has a pre-Stoic origin. The term ratio naturalis expresses the universal principle of rationality or mentalism. It was brought to light and included in Roman law for the first time probably by Gaius, and it was adopted by other Roman jurists.
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The article deals with the issue of complicity in the commission of a crime between a person who exercises mental coercion on another in order to motivate him/her to commit a crime, and the person in respect of whom coercion has been exercised. It provides an answer to the questions of whether it is possible for the coercive person and the coerced person to appear as co-perpetrators of a crime, in what hypotheses and how the behaviour of the coercive person should be qualified. Hypotheses have been discussed in which the coercer instigates and helps another person in commiting the crime for which he/she has been coerced. The paper also provides a proposal for qualification of the coercive person’s criminal activity and considers the institute of complicity through mental coercion. A distinction has been made between cases of complicity between the coercer and the coercee on the one hand, and those in which there is mediocre perpetration on the part of the coercer on the other hand. The article would be useful to legal practitioners in qualifying some specific hypotheses of complicity in a crime when one of the persons involved in the crime is subject to coercion.
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The language of law is characterized by some features and peculiarities that make it difficult to understand for non-specialists in the field. The present article focuses on the need for plain legal language in order to guarantee observance of general principles of law, such as equality before the law and legal certainty. The first section deals with the historical and conceptual structure of plain legal language. Then, the paper provides an example of foreign experience in the field with the aim to illustrate the initiatives for modernizing the Spanish legal language which have been carried out in Spain over the last few years.
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This article discusses the methods of national government as an element of a whole system of mechanisms, legal institutes, specific legal rules and individual orders. Particular attention is paid to the ways and means of regulating the executive branch as a method of government. In addition, an analysis is provided of the methodological guidance and its connection with the three manifestations of public administration.
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Today, there is a clear need in developing a unified theoretical model of legal argumentation viable for all areas of legal practice and legal doctrine. Despite the existence of several models within either general argumentation theory or multiple judicial-reasoning doctrines, none of them can be used as a universal tool for studies of legal argumentation. The aim of this article is to suggest a theoretical model of legal argumentation viable for analysis of legal argumentation not only in judicial reasoning but also in other areas, e.g., law making, law application, or law interpretation. The subject matter of this article is a theoretical model of legal argumentation as a universal multidisciplinary theoretical basis for legal argumentation analysis. The theoretical model of legal argumentation encompasses an argumentative situation, a body of legal arguing, instruments of legal arguing and argumentation, a reconstruction and an evaluation of legal argumentation. In its turn, the body of legal arguing includes: parties of legal arguing, a subject of legal arguing, and a content of legal arguing. The instruments of legal arguing include legal and other arguments, argument schemes, argumentation structures, and rules of legal argumentation.
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Both freedom of expression and information quality are socially significant issues. They are however treated separately in the studies to date. The subject of theoretical research, whose results are discussed in the present article, is the connection between the two problems. The objective of the article is to define the impact of the quality of information on the way freedom of speech is used. To achieve this, the following hypotheses are verified: 1) appropriate information quality is conducive to behaviors that are within the freedom to express opinions; 2) inappropriate information quality need not be intentional; 3) the deliberately wrong quality of information may result in situations that are not within freedom of expression; 4) it is possible to effectively counter the use of information of intentionally wrong quality. The article is of scientific and research character. The presented problems have an international scope.
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The article tries to bring to the light the role of symbolism in the organized human life, in general, and the contemporary societies with the accelerating changes almost in all social structures, in particular. The rational of symbolism in changing socio-political and legal environment creates complexity of the issue, which has been studied in the article, taking into account the methodology of complex system theory. The interconnectivity and interdependency of law, morality and politics create the picture of synergy of different social norms with each other in changing environment. Their positive synergy is able to create a perception of the ‘ethical state’ – the focal point of equilibrium expressed in the attractor of future admired development. In the legal perspective, the symbol of that attractor appears to be the constitution as the society’s and the nation’s symbol of coexistence based on the values of mutual past, necessary present and admired future. It is substantiated that the Constitution is the phenomenon, representing a concrete constitutional idea and constitutional identity, and should be the one to be considered as such in a lot of people’s minds if we intend to have a proper constitutional system and values. Hence, the Constitution is not just a document with a highest legal force, but also a symbol of a concrete constitutional system, and from this viewpoint the Basic Law has a symbolic significance. The authors substantiate that the mentioned significance of the Constitution makes it clear that constitutional policy in any state should be established and implemented in a manner, obviously demonstrating an attitude towards the Constitution, in the frames of which it is considered as a symbol of a concrete constitutional system. The most important circumstance in this context is to never transform the Constitution (directly or indirectly) from a symbol to an instrument in the hands of both the people and the state power and the whole constitutional policy of the state should be based on the discussed essential idea. Moreover, according to the authors the Constitution should not be subject to amendment parallel to every change of political situation of the state or formation of a new political majority merely conditioned by the mentioned changes. The Constitution has a fundamental role from the aspect of regulating social relations, has symbolic significance and can’t be used just as a tool for solving ongoing political problems.
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The foundation of culture and civilisation, philosophy and the great philosophical systems have been meditations on the nature, essence and purpose of human existence. Knowledge of the fundamental theories, concepts and ideas contained in the whole of legal philosophy, in the work of our philosophers and jurists, is not possible without a broad framework of philosophical and legal debate at world, or at least European, level.The present study falls into the category of restitutions due, in terms of knowledge and appreciation of the remarkable contributions of some Romanian specialists in the philosophy of law, many of which have long been forgotten, distorted, truncated or simply eliminated from the national scientific heritage. At the same time, the work aims to highlight the social need for philosophy of law, to highlight the value of Romanian contributions at a time when, in global society, there is attendance to ignore and fade away specific valuable contributions, capable of entering the universal heritage of legal thought. In Romania, the beginnings of the philosophy of law coincide with the awakening of a unitary national sentiment, based on the idea of the Romanian origin of the nation. We can consider as important landmarks in the birth, evolution and development of the philosophy of law in Romania, the works of the chroniclers of the 17th and 18th centuries (some of whom were true philosophers of public law) or the first codification of private law, through the work of various jurists. The interwar period brought an increasing affirmation of the concerns devoted to the philosophy of law in Romania.
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Linguistic identity is an essential part of the identity of the individual. The language used in communication is a means of identification for the one who uses it because, on the one hand, it creates certain socio-historical conditionings with the human community to which the individual belongs, and on the other hand it contributes to the classification of the repsective individual in a majority group or a minority group on this criterion, analyzed alone or by corroborating with other identification criteria. In this context, the role of the state in ensuring the right to identity is extremely important. With reference to these considerations, in the Constitution of Romania and the Constitution of the Republic of Moldova there are multiple similarities, but also some relevant differences.
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Law and rights have been an important concern for philosophers and jurists, especially since the 18th century. Likewise, the delimitation of fundamental rights and fundamental freedoms, both components of the legal area of the individual, with many similarities and differences between them, was also achieved. Fundamental human rights have been established and guaranteed through numerous national and international instruments of protection, each state of lawmaking such instruments available to the citizen. At the same time, supranational entities have created such instruments, whose provisions are above those of the internal law of the component states.
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Law is a value-regulatory system aimed at order in social relations. Order is achieved by setting clear qualitative-quantitative legal possibilities in the behavior of subjects in similar situations of permanently recurring human activity in community conditions. This article points to arguments in support of the thesis that the legal measure is a carrier and concretization of the legal meaning, reflecting a typical, correct, reasonable, bilateral, fair setting of the type and volume of legal authority of the subjects in the distribution and exchange of goods within the legal system. The legal measure exceeds in substance and volume the norms in law, it is contained in every expression of law, and therefore it is derived as a fundamental concept of the general theory of law. The theoretical projections of the legal measure are carried out through the legal possibilities of the subjects in terms of type and size, characterized by the implementation of rights, obligations, orders, prohibitions, imperatives.
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The country of origin principle can be contemplated in the light of the scholars’ debates relating to the rise or fall of the conflict of laws concept. This paper is an invitation to scholars to assess the notion of ‘comity’ as a genuine premise of the mutual recognition principle. The said notion reminds us all that international law and the conflict of laws are twin instruments; these instruments are conceptually designed to manage the transnational realities from nowadays. The nation-States, regional organizations of (economic) integration, international organizations, private actors are learning again how to exercise the notion of ‘comity’.
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From ancient times, the oratorical art (ars bene dicendi) affirms itself as an essential component of society. Being an instrument for politicians, jurists and more, the ability to communicate became an indispensable aptitude. Naturally, intellectuals gradually started to show interest for this art from a methodological perspective, starting schools of rhetoric and theorizing the knowledge on the subject. Therefore, by evoking the most important figures of oratory and exploring the theory behind this art, we analyzed its development until it reached the form it has in present times, with a particular interest for the judicial component of oratory, the lawyer`s plead.
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The main goal of this article is to reveal the virtue of courage which plays a significant role in Plato’s political philosophy. It will be argued that the importance of this role stems from both Plato’s effort to bring together the different dimensions of Socrates’ courage, which he exhibited in his life as a philosopher, whicheven cost him his life, and that it is an integral part of the ideal state solution in which philosophy and politics can be reconciled. Plato was trying to give new philosophical meaning and role to the courage. It will be argued that this point of view can serve to understand the different dimensions of Plato’s search for a solution to construct the philosophical life, which brings together wisdom and courage embodied in the personality of Socrates, on the ideal site as a true and just life.
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There are different theories about the purpose of punishment in modern criminal law. Criminal lawyers have generally examined these theories under two main headings as absolute and utilitarian/relative theory. In absolute theories, punishment is an end in itself and not a means to another end. Contrary to absolute theories, punishment in utilitarian theories is a tool for the realization of another purpose. In this study, which deals with the purpose of punishment in İslâmic criminal law, the theories that explain the purpose of punishment in modern criminal law are given in general terms in the introduction part of the study, and then the manifestation of the purpose of punishment in İslâmic criminal law is discussed. Since this study requires an interdisciplinary study, an evaluation has been made on the works of fiqh and tafsir. In our study, crimes that require punishment of hadd, qisas, and ta'zir are discussed under separate headings, and the purpose of the punishment given in each type of crime is questioned. Although the general prevention function of punishments is generally emphasized in the crimes requiring hadd and qisas punishments, both in the works of fiqh and in tafsir, the special prevention function of the punishments is not ignored. The opposite is the case in the punishment of crimes that require the penalty of ta'zir. Here, too, although the specific prevention function of the penalty outweighs, there can be references to the general precautionary function.
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