Analytical Jurisprudence Research Articles

The Position of Moral in the Legal System in Indonesia and its Practice in the Justice System in Indonesia.

Legal interpretation plays a crucial role in legal studies and legal practice, many legal experts still do not agree on the presence of interpretation science in the position of legal discipline studies. Especially Indonesia which adheres to a positive legal system, so that the emergence of legal interpretation in society becomes a pro-contra discussion. This interpretation model is a serious challenge in judicial practice because it is related to serious problems related to analytical jurisprudence, how in judicial practice judges are played in making decisions not based on written legal provisions or positive law. Ronald Dworkin is a legal philosopher who is very involved in the issue of interpretation models, which makes Dworkin distance positivism by criticizing it as a standard rule. However, assessing the theory of the legal system presented by Dworkin actually in judicial practice has a value of benefit for those seeking justice and legal certainty, so that some judges in Indonesia also use interpretation in making decisions related to legal vacuum or legal uncertainty.

Analytical Jurisprudence: Conceptual Framework

The subject of the study is the problem of defining the conceptual boundaries of analytical jurisprudence. In Anglo-American legal science, there is a well-established position recognised division into two stages in the development of analytical jurisprudence. The leader of the first stage is J. Austin, the founder of analytical jurisprudence, and the key figure of the second stage is H. L. A. Hart. At the same time, it is noted that scientific projects belonging to the first and second stages have fundamental differences. In this connection, in the present article the fundamental characteristics of analytical jurisprudence are identified through a comparative analysis of its projects presented in the works of the main representatives of the respective stages. The main method in the study is the interpretive method, which includes the method of problem-theoretical reconstruction. Through its application it is possible to reconstruct the theoretical provisions that determine the continuity between the two stages of analytical jurisprudence. The novelty of the study lies in the fact that it focuses on the common elements of the two stages in the development of analytical jurisprudence, which calls into question the absolute differentiation between them accepted in Anglo-American legal thought. In this regard, the study substantiates that the founding elements of analytical jurisprudence are its general and descriptive character, as well as positivist legal understanding. At the same time, the article shows that (1) the actual identification of conceptual analysis and analytical jurisprudence does not allow us to reliably explicate the continuity between the stages of analytical jurisprudence and identify analytical jurisprudence as an independent direction of research; (2) the exclusion of legal positivism from the identifying characteristics of analytical jurisprudence causes the risk of absorption of analytical jurisprudence as a legal science by philosophical discourse.

Analysing the Essentials of Analytical Jurisprudence and Implications for the Construction of the Rule of Law in Contemporary China

Analysing the Essentials of Analytical Jurisprudence and Implications for the Construction of the Rule of Law in Contemporary China

Wpływ mediów internetowych na dyskurs prawniczy

This article examines the methodological challenges and difficulties created by the emergence of new forms of legal discourse. These are provided by the new channels of communication, collectively found within the “mass media” and concerns online media: portals, blogs, social networking applications, etc. Since analytical theories of legal discourse were developed before the IT revolution, it is important to consider to what extent existing theories of legal discourse are adequate, given the contemporary picture of the phenomenon. The article is scientific but also contains some reflexions in the field of legal methodology due to its subject. There are formulated two research theses. The first concerns the assumption that due to the expansion of mass media, legal discourse is losing its previous hermetic character. The second assumes that the research programme of analytical jurisprudence, within which previous theories of legal discourse have been developed, requires appropriate modifications to capture the new forms in which it is conducted. The paper concludes by formulating possible directions for the development of a methodology for creating theories of legal discourse.

JEREMY BENTHAM’S UTILITY THEORY AND ITS INFLUENCE
 ON ANALYTICAL LEGAL POSITIVISM

The article deals with the question of the philosophical foundations of the theory of utilitarianism and its influence on the development of analytical jurisprudence. The author notes that the theory of utility was first fully formulated in the views of Jeremy Bentham, and lies in the fact that the powerful subject in the formation of a mandatory regulatory system must create real effective models of behaviour and grounds for the actions of subjects, useful for society as a whole. In many respects, this thesis in the current onto-epistemological conditions became a positive response to the emerging theories of natural law and significantly influenced the development of British legal positivism. At the same time, the question of the content of useful and effective law at the stages of formation and development of analytical positivism was perceived in different contexts. The classical theories of John Austin and Hans Kelsen emphasised the formal legal aspect of law, associated with the construction of an optimal enforcement system. Subsequently, in the theory of H. L. A. Hart, who revolutionised the British legal philosophy tremendously, the rational-utilitarian aspect was perceived and integrated into the concept of law. The author concludes that the theory of utility has become, in fact, in Western legal positivism, an alternative to natural law axiology, focusing on rational arguments for the conscious adoption of the normative system if it is effective.

Inclusive legal positivism: Basic arguments

The relevance of the topic of this paper is due to the insufficient study of the problems of inclusive legal positivism in the modern philosophy of law. The problem of substantiating the thesis of the inclusion of morality in law on the basis of rational argumentation of scientists and legal practice data considered in the paper allows an innovative analysis of basic legal concepts. The subject of the research is to analyze the methods of moral, ethical and legal argumentation in the works of representatives of inclusive legal positivism. The purpose of the work is to theoretically reconstruct the essence of the debate between inclusive and exclusive legal positivism. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of inclusive legal positivism, set out in the scientific works of Will Waluchow and Kenneth Himma, the need to rethink traditional ideas about the theory of legal positivism. The research methods used in the paper is the methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions). The main conclusions of the paper are to reveal the key arguments of the concept of inclusive legal positivism. It is proved that from the point of view of this concept, the law has moral grounds, and judges in some cases use moral reasoning when making court decisions.

Participation and Law’s Authority

AbstractThis article argues that despite its claim to be most concerned with the nature of law in the generality of cases, legal positivism’s almost exclusive focus on Anglo-American law has prevented the tradition from adequately answering the question of law’s authority. This article argues that much positivist analysis either ignores, or takes for granted, the participation of the local population in the historical development of any given society’s law and legal system. This failing means that positivism, and much of analytical jurisprudence, does not provide a truly general, non-circular explanation of authority that accounts as equally for post-colonial legal systems as it does for the Anglo-American systems with which positivism has been most concerned. I argue that the conceptual inadequacies in the explanations of law and legitimate authority offered by those such as H.L.A. Hart and Joseph Raz are most clearly exposed by post-colonial cases, such as Nigeria.

Субъектность как основная научная проблема цифрового права: к постановке гипотезы

Digital law is a polysemous phrase widely used in contemporary legal studies. From the point of view of analytical jurisprudence, its central meaning is defined by the “pervasive digital technologies” (artificial intelligence, distributed ledger systems, etc.). Doctrinal understanding of the problems of digital law requires the identification of a universal problem, as which the article proposes as a hypothesis the problem of agency in the broad sense of the word. The approach can be argued deductively and inductively. From the deductive point of view, agency is the central problem of the general filed of the philosophy of law and, as such, it should also be seen in specific fields of knowledge. From the inductive point of view, in the main specific problems of certain “pervasive digital technologies” there is a common feature of their connection with the problem of agency, which is demonstrated in the article on the basis of the technology of artificial intelligence. Confirmation of the hypothesis of subjectivity as the main problem of digital law (or an academic convention regarding such a hypothesis) will mean the existence of a general doctrinal principle to be taken into account in various forms of law-making and lawenforcement activities in cases where the formal-legal method cannot be applied due to objective circumstance.

Neurorights as Hohfeldian Privileges

This paper argues that calls for neurorights propose an overcomplicated approach. It does this through analysis of ‘rights’ using the influential framework provided by Wesley Hohfeld, whose analytic jurisprudence is still well regarded in its clarificatory approach to discussions of rights. Having disentangled some unclarities in talk about rights, the paper proposes the idea of ‘novel human rights’ is not appropriate for what is deemed worth protecting in terms of mental integrity and cognitive liberty. That is best thought of in terms of Hohfeld’s account of ‘right’ as privilege. It goes on to argue that as privileges, legal protections are not well suited to these cases. As such, they cannot be ‘novel human rights’. Instead, protections for mental integrity and cognitive liberty are best accounted for in terms of familiar and established rational and discursive norms. Mental integrity is best thought of as evaluable in terms of familiar rational norms, and cognitive freedom is constrained by appraisals of sense-making. Concerns about how neurotechnologies might pose particular challenges to mental integrity and cognitive liberty are best protected through careful use of existing legislation on data protection, not novel rights, as it is via data that risks to integrity and liberty are manifested.

VICTIM BLAMING IN LIGHT OF STRAWSON’S NATURALISTIC THEORY OF MORALITY

The relevance of the topic of this paper is due to the insufficient study of the influence of Strawson’s naturalistic theory of morality on modern jurisprudence and philosophy of law. This comprehensive paper explores Peter Strawson’s naturalistic theory of morality, delving into the phenomena of victim blaming and its ancient roots in mythological contexts. It begins by assessing Strawson’s fundamental works, “Freedom and Resentment” (1962) and “Social Morality and Individual Ideal” (1961), elucidating how human emotional attitudes and moral accountability underpin society’s moral fabric. The subject of the study is to analyze the ways of using moral argumentation and its boundaries in justifying the phenomena of victim blaming. The purpose of the work is to theoretically examine the connection of victim blaming within modern societal attitudes to ancient mythologies, revealing a profound enduring narrative thread. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of victim blaming in modern legal philosophy, the need to rethink traditional ideas about the philosophical grounds of the criminal law, especially how the belief in divine will and a deity’s alignment with the perpetrator of violence, embedded within archaic societies, resonates within the victim blaming paradigm. By examining the concept of sacrifice in both well-known and obscure myths, the paper explains the purposeful nature of victimhood, and its societal implications. It further evaluates the philosophical and cultural dimensions of violence in archaic societies, deconstructing how violence was considered divine in such contexts. The intersection of victim blaming and moral responsibility is then examined, particularly how they influence societal attitudes and legal frameworks. The research methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions) were used. The paper concludes with a synthesis of these insights, reflecting on their implications for understanding Strawson’s naturalistic theory of morality. It offers significant conclusions about the complex relationships between morality, victim blaming, and societal norms, emphasizing the theory’s utility in comprehending the nature and impacts of victim blaming.

Traditional spiritual and moral values in the context of digital transformation of society: Aspects of legal theory

Among the main directions of the legal policy of the state can be noted, on the one hand, the support of traditional spiritual and moral values, and on the other — the digital transformation of society. Traditional values are a condition for state sovereignty of the Russian Federation in the information space, and their protection and defense are a guarantee of information security of the Russian Federation. From the point of view of the communicative theory of law, traditional values should be considered in the process of legal communication, which involves the perception (interpretation) of message (text) that includes inter alia the emotional-value aspect. As values, the traditional values are a necessary condition for functioning of legal system. From the formal legal point of view, when the concepts of traditional spiritual and moral values are included in legal texts, what is implied is the possibility of referring to them in “complicated cases” of legal interpretation and developing models of legal argumentation. From the perspective of analytical jurisprudence, traditional spiritual and moral values can act as a legally significant criterion for determining the meaning of a word in a legal text in a “situation of penumbra” — in what aspect a particular disputed object of legal relations has a value nature, and in what it is expressed. Traditional spiritual and moral values set the boundaries for the choice of legal decisions related to the digital transformation of society. For example, the wellknown notion that it is impossible to make legally significant decisions using artificial intelligence systems with the complete exclusion of a person from such a decision-making system would seem to contradict traditional spiritual and moral values, which center on the person in its moral dimension. This approach could be extended to other pervasive digital technologies as well.

Pragmatism, Logic, and Law

Pragmatism, Logic, and Law

Shariah Regulations for the Halal Industry: An Analytical Jurisprudence Study in the Light of the Turkish Foundation (GIMDES) Experience

Shariah Regulations for the Halal Industry: An Analytical Jurisprudence Study in the Light of the Turkish Foundation (GIMDES) Experience

The Conceptual Problems Arising from Legal Pluralism

AbstractThis paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, and politico-moral inquiries about legal pluralism.

Понимание конституционности в философско-правовом дискурсе: мнимые и подлинные альтернативы

Ensuring compliance of legal acts with the constitution is a problem of legal dogma and practice, as well as of the philosophy of law. In the latter, these ques­tions are linked with more general problems of validity of normative orders, in­cluding a legal one. In positivist philosophy of law, there are two alternative ap­proaches to their understanding – analytical jurisprudence and legal realism. The first describes the legal order as a system of norms, where the validity of a norm is determined by its compliance with a norm of higher level. However, because of the ambiguity of constitutional text it is often impossible to give a definite answer on the conformity of law with the constitution. The recognition of a law as constitutional depends upon the discretion of the constitutional re­view body which decides a case. These approaches of the analytical philosophy of law are practically identical to the legal realists position according to which a normative text doesn’t have any meaning before it’s interpretation by the autho­rized body, that determines a real content of a text. Within the framework of these areas of legal thought, the idea of ​​ constitutional review loses any meaning, and the effectiveness of the constitution, not only its supremacy, is called into question. Non-positivist approach is a genuine alternative to this understanding of constitutionality. According to it the limiting of public authorities and human rights realization are the purposes of a constitution. In formal legal sense, consti­tution as a normative act only fix those principles that guarantee the proper orga­nization of government. These principles express the essence of the constitution and serve as standards of constitutional review. Such understanding of constitu­tionality justifies different interpretations of constitutional text, and at the same time sets limits to it with the help of agreed understanding of general principles.

A few thoughts about our legal science

The article analyzes the state of Soviet legal science. The features of jurisprudence affecting the state and prospects of the development of legal thought are revealed. The scientific and practical justification of the need for a deep revision of the existing system of ideas about law, the development of such scientific provisions, according to which a radical transformation of the entire legal system would be carried out, is given. The directions of enriching the content of legal science are investigated. The development of domestic legal science is proposed on the basis of well-developed general theoretical concepts of analytical jurisprudence, philosophy of law and legal sociology, instrumental and behavioral-psychological theories.

Complications (Complexity) between Normative and Descriptive: A challenge for Clarity

This article will address descriptive and normative concepts vis-à-vis their inferential value and epistemic evolution within the social sciences. The analysis focuses mainly on the normative concept, which arises in the intersection between various disciplines of the social sciences, blending within itself a dialectic between the subjective and the objective, between the individual and the social. The descriptive concept – which acts as a link between logos qua language and the empirical reality – will have less elaborated analysis. The article’s purpose is convenient for readers acquainted with the field in question as well as those for whom the topic is less known. Indeed, the article is intended to address the above concepts from the point of view of the political scholar. However, during the research process, it was considered appropriate that these conceptions have an interdisciplinary heuristic reflection in order to be of value and interest to scholars of political science, philosophy, and law. As a first step, we will present in classical form the meaning and explanation of the concepts in question, based on linguistic and philosophical dictionaries. The article also focuses on the solid definition given to the concept of normativity – understood in legal terms – by Hans Kelsen through his idea of a Base Norm (Grundnorm) and his critique of Max Weber’s sociological conception of norms. Secondly, we will outline the dichotomy between the concepts of “is” and “ought” – the former analyzed by Kant as a hypothetical imperative, as a determinant of goals and actions based on desires and, the latter considered as a categorical imperative, as a normative determinant based on reason. Another dimension of normativity is seen from the perspective of analytical jurisprudence, the dialectic created between formalists and anti-formalists in the treatment of morality, both in subjective and social terms. Finally, the emphasis will be placed on normativity in politics and in spoken language, dimensions that define the normative approach.

Interpretation of jurisprudence and law in the doctrine of T. E. Holland

The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.

The realization of the right to freedom of speech on the Internet

The expression of opinions on the Internet has a number of features in comparison with traditional means of information dissemination. Firstly, imposition of classical measures of legal liability can be difficult due to the peculiarities of cyber space: anonymity and erasure of jurisdictional boundaries. In this regard, a new mechanism of restrictions has appeared, which consists in the withdrawal of information that violates the law or the rights of other citizens from the Internet at the direction of state bodies. The trends in this area are the predominance of the administrative procedure for making decisions on the withdrawal of information from public access, and the use of vague and evaluative terms as grounds for restrictions. Secondly, in most cases, in the process of realizing freedom of speech, intermediaries are involved — companies that provide a public forum for millions of users. The activities of these companies are also associated with new mechanisms for restricting freedom of speech: from blocking content to deleting users’ accounts. Such companies have a dual responsibility: to monitor the placement of content in order to prevent abuse of freedom of speech and to prevent violations of freedom of expression with their own corporate rules. The purpose of this article is to identify, through the method of analytical jurisprudence, the problems that arise when restricting freedom of speech, implemented in the digital environment, and to establish the reasons for their occurrence. To do this, the author has carried out a review of Russian legislation and the practice of its application, as well as the practice of restrictions, applied by corporations, and an analysis of foreign literature.

THE LEGAL DOCTRINE OF JOHN WILLIAM SALMOND AS THE EVOLUTION OF THE ANGLO-AMERICAN LEGAL POSITIVIST TRADITION

The purpose of the research. This article examines the key ideas underlying the legal teachings of the New Zealand lawyer, civil servant and judge John William Salmond (1862-1924), who, as the authors of this study demonstrate, was one of the first critics of the “command theory of law” of the founder of the school of analytical jurisprudence John Austin (1790-1859). By analyzing and interpreting Salmond’s legal doctrine the authors refute the view, entrenched in Russian jurisprudence, that the central representative of the 20th century neo-positivism Herbert Lionel Adolphus Hart (1907-1992) is considered a pioneer in this field who initiated the criticism of Austin’s legal understanding. The authors advocate the position that Hart’s critique of the command conception and understanding of law in his teachings is largely based on Salmond’s ideas. As a result of this study the authors conclude that there are certain similarities between J.W. Salmond’s idea of “ultimate legal principles” and H.L.A. Hart’s legal doctrine on the “rule of recognition”.