Legal survivals: concept, theory, methodology

Legal Survivals: Concept, Theory, Methodology

The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations

The proposed scientific article comprehensively examines the legal analysis of the interaction of the concept of law and power, which provides for a clear application of current legislation in modern society. The need for law has a higher legal purpose fixed and secured by positive legal qualities and legal elements of law, creating a space for free behavior of all participants in public relations in accordance with the principles of freedom, humanism, spiritual wealth and material interests of man and citizen, currently being studied taking into account world legal practice. Currently, the role of law in the system of legal regulation in society represents the role of the state and law in various legal forms, implemented through law, in its imperative power activities. This legal interpretation is due to the influence and development of the legal system of norms-definitions as a legal model of the behavior of subjective rights in modern society, where the implementation of law is defined as the implementation of legal regulations, this is an improved protection of human rights under the current Constitution of modern countries, from the point of view of legal science. The need to study the interaction of the concepts of law and power as a single legal mechanism, their legal norms is widely used in modern society and is contained in legal institutions to build a rule of law state in accordance with the legislative system and legal principles, where it is provided with the positive law necessary for the legal institutions of society. When studying the concept and operation of the legal mechanism applied by state authorities in legal practice, the law itself specifically determines the needs of modern society in the law itself, and vice versa, the entry of legal institutions into the sphere of state power is necessary to maintain imperative principles in the field of law, using the broad powers of law, as a category of law in modern society.

Legal formalism stands for a variety of schools, movements, and approaches in jurisprudence that all share a commitment to the logico-conceptual, systemic premises of law. The German conceptualist jurisprudence, as represented by Georg Friedrich Puchta and Bernhard Windscheid, best illustrates extreme legal formalism on the European continent. Jurisprudence as envisioned by Puchta was to be a jurisprudence of legal concepts and their mutual, hierarchical relations. It was a task for the legal doctrine to construct a genealogy, or pyramid, of legal concepts from the source material available. The “Langdellian orthodoxy”, i.e. Christopher Columbus Langdell’s case method in legal education, introduced by Langdell in 1870 at Harvard, counts as the prime instance of American legal formalism. Langdell underscored the doctrine of stare decisis and the relatively few general principles of law that were deemed to be effective behind the voluminous case law. Based on a fertile cross-reading of Ronald Dworkin’s conception of legal rules and legal principles and Robert S. Summers’ idea of the tenets of legal formality, legal rules (a la Dworkin) are defined as legal arguments with high legal formality (a la Summers), and legal principles (a la Dworkin) are defined as legal arguments with low legal formality (a la Summers). The ingredients of legal formality comprise the six categories of constitutive (i.e. validity and rank) formality, systemic formality, mandatory formality, structural formality, methodological formality, and logico-linguistic formality, all adding up to the concept of deontic formality. Finally, legal formalism may be criticized for its blindness to the interest-laden, purpose-oriented, and value-bound tenets of modern law, as pointed out by Rudolf von Jhering and Lon L. Fuller.

The Modern Law ReviewVolume 71, Issue 2 p. 303-319 Neither Parochial Nor Cosmopolitan: Appraising the Migration of Constitutional Ideas Jo Eric Khushal Murkens, Jo Eric Khushal Murkens Law Department, London School of EconomicsSearch for more papers by this author Jo Eric Khushal Murkens, Jo Eric Khushal Murkens Law Department, London School of EconomicsSearch for more papers by this author First published: 18 February 2008 https://doi.org/10.1111/j.1468-2230.2008.00694.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume71, Issue2March 2008Pages 303-319 RelatedInformation

Scholars conventionally distinguish between liberal and illiberal, or authoritarian, legal orders. Such distinctions are useful but often simplistic and misleading, as many regimes are governed by plural, dual, or hybrid legal institutions, principles, and practices. This is no less true for the United States, which often is misidentified as the paradigmatic liberal constitutional order. Historical and critical scholarship, including recent studies of law under racial capitalism, provide reason to identify American law as a dual state in which legal forms that govern property ownership, contract relations, and civil liberties of free citizens differ from the more illiberal, authoritarian legal forms that rule over subaltern populations, particularly racialized, low-wage workers, Indigenous populations, the poor, immigrants, and women. This dual state, we argue, did undergo changes to adopt more procedurally liberal, professional, overtly deracialized legal forms after World War II, but these changes masked more than tamed the continuing illiberal, authoritarian violence that targeted marginalized citizens. While constantly changing, the American legal system is best understood not as a singular liberal order but instead as a hybrid system of mutually constitutive liberal and illiberal and authoritarian legal practices.

Making Law Possible

The principle of legality is the most basic principle in the application of material criminal law. The principle of legality adhered to in Indonesian criminal law was originally the principle of formal legality. Meanwhile, in the renewal of criminal law embodied in the National Criminal Code, the principle of legality adopted also includes the principle of material legality. This article aims to analyze the expansion of the legality principle in the renewal of Indonesian criminal law and understand the meaning of the expansion of the legality principle. This article was written using a normative legal research method with a statutory approach. The result of this study is that the expansion of the legality principle in criminal law renewal is an effort to balance the fulfillment of legal objectives between legal certainty in the formal legality principle and justice in the material legality principle.

Introduction. The issue of studying the administrative and legal framework for the provision of public services within certain activities, including the ones in the field of entrepreneurship, is relevant for Ukraine. Conceptual and categorical apparatus, which could be further used in the professional literature, law-making and law-enforcement practice, is still insufficiently developed. The purpose of the paper is to define the content of the concept of administrative legal principles for the provision of public services in entrepreneurship taking into account the latest trends in administrative law, legal practice and changes in the national legislation. The methods used in the study are comparative legal, formal legal, logical and semantic as well as analysis and synthesis. Results. The need to define the concepts that make up the categorical basis for the study of administrative and legal principles of public services in the field of entrepreneurial activity is revealed. The analysis of scholars’ views on understanding the essence of the category of administrative and legal principles is conducted. The practice of applying the term of administrative and legal principles in domestic legislation is generalized. The concept of public services is analyzed and defined. The concept of entrepreneurial activity is formulated. Conclusion. It is stated that entrepreneurship activity is a strategic factor and an internal source of economic development and material well-being of the population of Ukraine under the market conditions. Administrative and legal principles of providing public services in the field of entrepreneurship activity is a set of characteristics of social phenomena and legal relations in the field of providing public services for entrepreneurship, which needs to be regulated by the administrative and legal means and provide categorical, regulatory and organizational-management support.

This article presents the difference between legal norms and legal principles. The author’s viewpoint is based on the differentiation between regulatory, systemic and teleological legal attitudes in the legal order of a state of law (Rechtsstaat). The conceptual framework of legal principles entails constituent laws and different areas of a legal order. Unlike legal norms (as subject-specific regulating legal attitudes) and legal standards (as the most general legal attitudes), legal principles are radiating teleological legal attitudes. Moreover, being the result of systemic and teleological concretisation of written law, legal principles as basic teleological legal attitudes are shaped as bundles of teleological legal attitudes and legal conceptions. In the order of a legal state, legal principles have a circular flow in the operation of the legal order, which is determined by the complementary roles of the institutional order of public authority, the institutional order of state authority, and the institutional order of a territorial community. It necessarily brings to light the difference between the fundamental legal principles of a legal order and the legal principles governing different areas of a legal order. This article analyzes the aspects of systemic and teleological understanding of legal principles, particularly considering the distinctive nature of legal principles as sources of law. Legal principles are also viewed as canons directly developed in jurisprudence, within the framework of the “internal legal system” based on legal forms.

The operational effectiveness of the legal institution of positive administrative silence within the Ecuadorian legal system is safeguarded by the normative design of the constitutional State of rights and justice in force in Ecuador, wherein administrative inactivity cannot become a sphere of discretion for the public administration to the detriment of citizens’ rights; rather, it must, in application of the principle of legality, translate into legal effects that ensure the effective protection of the rights of individuals subject to administrative action. In this regard, Ecuadorian doctrine has maintained that legality is not exhausted in formal compliance with statutory law but entails the comprehensive subjection of the administration to the constitutional bloc, thereby producing direct effects on the configuration of positive administrative silence as a rights-protective mechanism. Thus, Grijalva (2007) asserted that “without constitutional justice, there is, in a certain sense, no Constitution” (Grijalva, 2007, p. 1), underscoring that legality constitutes one of the structural preconditions for the validity of administrative acts, including administrative omissions. In this context, positive administrative silence is configured as a legal institution aimed at correcting dysfunctions within the public administration, particularly those arising from administrative inactivity or delay, which necessitates a systematic interpretation grounded in the principle of legality. Within this framework, the criteria of Ecuadorian doctrine were contrasted with contributions from comparative law (Colombian and Chilean doctrine), with the aim of assessing whether positive administrative silence in Ecuador effectively constitutes an instrument of substantive control over public administration, articulated within the Ecuadorian normative context alongside the principle of legality and the right to legal certainty. On this basis, the findings of the research demonstrate that the principle of legality operates as an articulating axis between positive administrative silence, legal certainty, and judicial review, thereby configuring a system of guarantees that limits administrative discretion and strengthens trust in public institutions. In line with comparative doctrine—particularly Colombian and Chilean scholarship—it is determined that legality not only conditions state action but also state inaction, consolidating positive administrative silence as one of the central legal mechanisms for the protection of citizens’ rights in cases of administrative inactivity in Ecuador, in accordance with the principle of legality and the right to legal certainty.

The article is devoted to an in-depth analysis of logical methods in the philosophy of law developed by Bohdan Kistiakovskyi, an outstanding Ukrainian thinker who made a significant contribution to the development of legal science and jurisprudential thought at the turn of the 19th and 20th centuries. Particular attention is paid to the influence of the Neo-Kantian philosophical tradition on the formation of Kistiakovskyi’s methodology, especially with regard to logic as a tool for structuring legal matter. The article demonstrates that logic in Kistiakovskyi’s philosophy of law is not merely a formal instrument but a means of rationalizing legal concepts, ensuring their internal coherence, normative consistency, and ethical justification. At the core of the study lies the understanding of law not only as a system of norms but as a component of rational knowledge that presupposes conformity to logical principles. The concept of the rule of law is examined within Kistiakovskyi’s framework, where adherence to formal logic in legal reasoning and law-making is seen as a necessary condition for legal certainty, justice, and legitimacy. The ethical and philosophical foundations of law are analyzed as being integrated into his methodology through a synthesis of legal positivism, sociology of law, and normative theory. The article also explores Kistiakovskyi’s interdisciplinary approach, in which legal science is viewed in connection with social, cultural, and philosophical dimensions. Special attention is given to the Ukrainian context of his intellectual legacy: his efforts to adapt and reinterpret European legal concepts through the lens of national identity and the spiritual and cultural foundations of Ukrainian society. His critique of extreme forms of legal dogmatism and legal relativism is highlighted, along with his consistent striving for universalism combined with respect for legal diversity. In conclusion, the article substantiates that logical methods in Kistiakovskyi’s philosophy of law remain highly relevant to contemporary legal scholarship. Their applicability goes beyond historical or philosophical analysis, contributing to the development of critical, analytical, and ethically oriented legal thinking. Logic, as understood by Kistiakovskyi, serves not only as a technical means of organizing norms but also as the foundation for constructing law as an intellectual and humanistic system. This approach opens up new perspectives for the advancement of the philosophy of law in the face of current challenges such as legal globalization, hybridization of legal systems, and the need to reestablish ethical guidance in law-making and legal practice.

A 'philosophy of public international law' denotes two related projects. The demarcation of international law as law. And an investigation of how claims and concepts arising within international law are, or are made, true. Other research projects concerning international law presuppose elements of both of these forms of philosophical investigation. Put formally, a philosophy of law is a two-fold project. First, demarcation must identify how we distinguish the legal from non-legal. Second, critique must explain how the legal practices themselves distinguish the legal from the non-legal. We have, then, to encompass the substantive phenomena of international law within a wider enquiry into the basis of what constitutes a legal system. This means asking why we can call anything law, if and how we understand law as a system, and whether (international) law can be considered an open or closed system.

Introduction: If you know Jeremy Bentham in his moral teachings on utilitarianism, it is often said there that the principle of utility he discovered is also used in constructing the concept of law. 
 Purposes of the Research: This research aims to find out how the principle of utility becomes the basis for establishing a legal system. 
 Methods of the Research: The methods used in this study is a qualitative method with a descriptive and interpretive analysis approach.
 Results Originality of the Research: The research results show that the usability test on legal institutions and practices makes the principle of utility a critical instrument for assessing the performance of a legal institution. For Bentham, law is an order from a sovereign power or imperative law. The law must have substance and legal form. Legal substances are certain legitimate (sovereign) legal institutions within the state that are authorized to make and promulgate laws, and that law must be written in law. The legal form in question is codification.

The purpose of the article consists in that, to attract attention of modern scientists in sphere of philosophy of right to labours of Ukrainian philosophical school of 1960th in area of general philosophy and philosophical gnosiology, and also to show that a number of positions of gnosiology of right are the constituents of corresponding positions of philosophical gnosiology, and that dialectical intercommunications of legal gnosiology with legal anthropology, praxeology, axiology and ontology predefined by dialectical intercommunications of philosophical gnosiology with philosophical anthropology, praxeology, axiology and ontology. Some researchers examine the copulas of legal gnoseology with other components of legal philosophy, foremost with legal ontology (in particular, А. М. Bernjukov, М. М. Proxhorov, О. С. Тarasov), but a legal gnoseology has dialectical copulas also with legal anthropology, praxeology and axiology. V. . Кuzmenko analyses a question about unity of legal ontology, anthropology, axiology and gnosiology, however only in connection with philosophical-legal conception of Thomas Aquinas, it is necessary to set a question wider. Methodology. Research methods are predefined by his character. Dialectical and system-structural methods, methods of logic, are used in the article foremost. The scientific novelty of the article is to attract the attention of modern specialists on the philosophy of law to the achievements of the Ukrainian school of 1960-ies because they can and should be extended to the philosophy of law and legal gnosiology in particular. Organic intercommunications of legal gnosiology with other major sections of the philosophy of law due to the presence of the organic interrelations of philosophical gnosiology with appropriate disciplines. Conclusions. Specialists in philosophy of law must deeper explore the heritage of Ukrainian philosophers of the sixties and the dialectics of legal anthropology, praxeology, axiology, ontology and gnosiology. Keywords: gnosiology of right; philosophical gnosiology; philosophy of right; legal cognition; subject; object; truth; theory; idea; dialectics.