Development Of Legal Theory Research Articles

THE INFLUENCE OF THE DIRECTION OF NATURAL LAW ON THE FORMATION OF JUDICIAL DECISIONS IN THE CONDITIONS OF MODERN SOCIETY

The views of thinkers and figures representing the direction of natural law, whose ideas had the greatest influence on the world philosophical and legal thought and the formation of the philosophical and legal views of judges, are considered. The interaction between the direction of natural law and the formation of judicial philosophy is shown. The role and importance of natural law for the development of philosophy of justice, which should be in constant contact with current events and problems, which would ensure its leading role in the development of legal theory and practice, through the impact on modern legal thought in Ukraine conditions of modern society.

Development of the Theory of Legal Interpretation in the Works of A.F. Cherdantsev

The article examines the scientifi c heritage of the representative of the Ural law school, one of the leading Soviet and Russian theorists of state and law, Professor A. F. Cherdantsev. His contribution to the theory of interpretation of law and its infl uence on the development of legal theory in general are presented. The author›s approaches to the main problematic issues of law interpretation are analyzed. Special attention is paid to the functional method of interpretation of law-offi cial interpretation as a type of interpretation by subjects.

Agent-Based Modeling as a Legal Theory Tool

Agent-based modeling (ABM) is a versatile social scientific research tool that adapts insights from sociology and physics to study complex social systems. Currently, ABM is nearly absent from legal literature that evaluates and proposes laws and regulations to achieve various social goals. Rather, quantitative legal scholarship is currently most characterized by the Law and Economics (L&E) approach, which relies on a more limited modeling framework. The time is ripe for more use of ABM in this scholarship. Recent developments in legal theory have highlighted the complexity of society and law’s structural and systemic effects on it. ABM’s wide adoption as a method in the social sciences, including recently in economics, demonstrates its ability to address precisely these regulatory design issues.

TANGGUNG JAWAB SOSIAL DAN LINGKUNGAN PERSEROAN TERBATAS

Through the development of Legal Theory that started from the period of Ancient Rome, when the legal concept of Corporation was created and then admitted as “independent (separate) legal entity” that may conduct legal action similar to individual. The resemblance of Corporation with individual continued in Legal Theory with the concept of “Corporate Crime”, and further with the concept of “Good Corporate Citizen”, in which the Company is expected to also pay attention to the interest of its surrounding community, and the environment (not only for its own interest). The Company Law uses the term TJSL instead of CSR to emphasize the important role of the Company in participating in the environmental management. The Company Law considers that the Company responsibility upon the natural resources is fundamental. Therefore, the Company Law provides that the implementation of TJSL is compulsory for the Company which manage or affect natural resources. The Company Law underlines the requirement for TJSL that has been provided under certain prevailing laws, among others, laws on Industry, Environment, Prohibition on Monopoly Practices and Unfair Competition, Human Rights, Forestry, Employment, State Owned Company, Water Resources, Mineral Mining and Coal. The Company Law provides that TJSL should be incorporated in the business plan and budget, and the budget should be determined by the Company with due regard to the reasonableness and fairness. The implementation of which should be included in the Annual Report. The Company which business activity does not manage nor affect to the natural resources may also implement the TJSL. Basically, the Company Law urges each Company to voluntarily implement the TJSL, and for which the Company may be awarded with an Award as appreciation from the authority, provided further that the TJSL should be included in the annual business plan and budget.

Late Antique Christian Law in the Eastern Roman Empire

To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial material for legal historical research. Nevertheless, a few studies have blended legal history and late antique Christianity, and an analysis of these studies shows they are based on a “centralist,” or “formalist–positivist,” conceptualization of law.In this paper I review the scholarship of legal traditions in the eastern Roman Empire— namely, Roman law and Greek legal traditions, the halakha in rabbinic literature, and the halakhic traditions in Qumranic literature and in the New Testament—and contextualize it within developments in legal theory and legal sociology and anthropology (that is, the rise of legal pluralism). This review shows that developments in legal theory, in legal sociology and anthropology, and in legal history of the late antique world are producing new paradigms and models in the study of late antique legal history. These new models, together with new methods in reading early Christian non-legal texts of the eastern Roman Empire, can be utilized in the study of early Christianity, thereby opening gateways to the study of its legal traditions and revealing independent legal traditions that have remained hidden to date.

Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland

ABSTRACTScholars of emotion and the law have sought to demonstrate the significant role emotion plays in shaping the operation of courtrooms, the development of legal theory and practice, and the possibilities for justice. This paper contributes to the discussion by exploring what happens when emotion is ignored or underplayed in trial narratives, seeking to demonstrate that whose emotion is considered to be important can shed light on power dynamics, law and the cultures in which law operates. It does so through a case study of women on trial for murdering their husbands in early nineteenth-century Ireland. It argues that emotion is not simply another species of evidence that can be used in criminal processes, but itself a type of narrative – emotion is constructed and performed by actors in legal dramas and forms a competing story to others in the courtroom space.

Качество в юриспруденции

In the article the author formulates the main tasks of the legal science. He describes and enumerates various aspects of the scientific activities in the sphere of jurisprudence. The author asks the questions of what the law is and who is personally responsible for the legal researching. Composing the answers to his own questions, the author underlines, that the unified approach to the understanding of law how it is and to the methods, forms, ways and facilities, used while undertaking legal exploring and studies, should be refused. Besides this the author makes a statement, that the objectivity of the legal science and its being in a great social demand are directly depended upon the common people`s participation in the law making process. The author makes a true conclusion, that law, as a social phenomenon and public regulator, is completely and fundamentally based on traditions, habits, customs, culture and tenor of social life, which is law creator. The Scandinavian countries are shown by the author as an above said example, providing the active participation of the common inhabitants in the law making procedures there. The author expresses his own viewpoint, concerning the realization of the conception, aimed at the democratic, social and legal state maintaining procedure. In the article it is shown, that it can be fulfilled only through the rational, reasonably self – sufficing and conscientious law making. Further on the author displays the arguments, providing the existence of the mutual dependence between the appropriately effected law making and the properly ensured state and social interactivity promotion. The article also presents the correlation between the different and various criteria, implemented for the public law research and for the private law studies. Then the author makes a reader pay attention to the necessity to elaborate a real rank and a succession of the undertaken legal scientific research ventures in the sphere of law, in order to learn a human being first and only then to study a society but not on the contrary. At the same time it is very important to determine a subject, an object, the matter, the tasks, the goals, the facilities, a method and a way of scientific analytic research in learning law. It is also mentioned, that it is of a vital importance how to correlate and to consider the difference between the status and the development of legal theory on one hand and the legal practice on the other hand. The author is sure, that nowadays the convergence of the democratic and the autocratic methods, facilities, forms and ways of state governing should become one of the most substantial matters of the scientific research in the field of law. The author is persisting on his proposal of the obligatory usage of the potential of the other, contiguous to the legal one, adjacent sciences in order to obtain the most magnificent effect on the way to understanding law. At the very end of the article, while installing his inferences, the author describes his recommendations, targeted at the perfection of the scientific legal research activity quality, at the professional legal application level heightening and at the provision of the scholars` and of the legal practitioners` choice of the most optimal ways of approbation the results of the scientific research ventures, obtained by them. Particularly the author suggests promulgating these results done in the concrete determined forms, such as: through incorporating them into the process of teaching at the legal high schools, by a thorough selection of the informational resources for scientific analysis, by elaborating the criteria of the scientific research activities’ quality estimation and by combining the usage of the normative and functional approach to understanding the destination and the role of law.

Bridging the Gap


 
 
 This article presents two short but complete treatises on legal theory (uṣūl al-fiqh). The first was written by Ibn Surayj (d. 306/918) as an addendum to his compendium on Shāfiʿī law, al-Wadāʾiʿ, and the second by Abū Bakr al-Khaffāf (fl. early fourth/tenth century), who included it as an introduction to his legal text al-Aqsām wa-l-khiṣāl. An analysis of these texts reveals the existence of a self-conscious legal-theoretical discourse around the turn of the fourth/tenth century that connects al-Shāfiʿī’s (d. 204/820) Risāla with the so-called mature uṣūl tradition known from the late fourth/tenth century onward. The analysis also sheds considerable light on developments in legal theory in this period, such as the emergence of the term ʿilla (cause), the parallel rise of legal dialectics (jadal), the consequences of adopting the idea of waḍʿ (linguistic coinage), and generally the inclusion of theological concerns in legal theory.
 
 

Methodological Features of the Ancient Jurisprudence

The article is devoted to the methodological peculiarities of the ancient jurisprudence. The ancient world is undoubtedly an extremely important period not only in the world history, but also in the history of the development of philosophical knowledge and positive sciences, and therefore in the history of methodology, arising and functioning at the intersection of philosophy and science The methodology is a philosophical discipline, which sets the correct methods, approaches, ways of learning, and also creates necessary tools of scientific research, including those in legal sciences. The key aim of the methodology is an efficient organization and management of knowledge as a purposeful process of receiving and processing of new and reliable scientific facts. Special significance of the ancient period of methodology development is that it is this historical point that laid the foundations of the methodological principle of the matrix of cognitive activity. Undoubtedly, from the objective point of view it is only possible to speak on the elements of scientific knowledge and methodology in the period of the ancient world, as the science of that era could not be used as a smooth and systematic production of scientific knowledge on the basis of a comprehensive study of the reality. However, it is in the ancient times when a methodological basis of juridical science began to emerge, especially due to the theoretical efforts of the Greek thinkers and distinguished Roman jurists. We can certainly talk about cognitive multi-directional efforts of the scholars of ancient societies: Greek thinkers undertook the development of a theoretical side of political legal perspective, and Roman lawyers became widely known through practical activities in the field of State and Law. Roman law, was not only the final stage in the evolution of the ancient law, but it was the outcome of the overall development of legal theory and practice of the ancient world absorbing many important achievements of the legal thought of the greater part of the advanced countries of the ancient world. Thus, this article covers a rather ambiguous question on methodological grounds of theory and jurisprudence of the ancient time.

Food Prints on Human Rights Law Paradigms

This paper discusses the interaction between the development of legal theory on human rights (HRs) in general and on the right to food in particular. In international treaties HRs are often subdivided in two groups: civil and political rights (CPRs) on the one hand, and economic, social and cultural rights (ESCRs) on the other. These two sets of rights have been treated in fundamentally different ways. A judicial practice developed only for the application of CPRs. This gave rise to a paradigm in legal theory stating that CPRs give negative obligations to the state (e.g., obligations not to interfere with the freedoms of citizens), while ESCRs give positive obligations (e.g., obligations to provide certain preconditions of life). Negative obligations can be enforced against the state. Positive obligations are unenforceable policy directives. The UN views HRs as indivisible. ESCRs should empower people just as much as CPRs do. The special rapporteur on the right to food, Asbjorn Eide, coined a new paradigm to this effect. It connects negative and positive state obligations to all HRs. This paper argues that it is time for the next step in HR theory: a paradigm that moves beyond state obligations.

Not Teaching ADR in Law Schools? Implications for Law Students, Clients and the ADR Field

Alternative Dispute Resolution (ADR) is not taught in all Australian law schools. If it is taught, it is more likely to be taught as an elective rather than a mandatory core subject. The National Alternative Dispute Resolution Advisory Council (NADRAC) in 2011 and 2012 conducted a survey of Australian Law Schools and estimated that at present less than half of all graduates from Australian Law Schools receive training and education in ADR. Yet, lawyers in Australia are required under ethical and legislative regimes to advise clients about ADR. Clients expect lawyers to know how to negotiate and to be skilled in various forms of dispute resolution, not just litigation. Lawyers are frequently engaged in ADR as representatives and they are now more likely to be involved in ADR than litigation. Given this reality, why is it that many Australian law schools still do not teach ADR as part of a mandatory core curriculum?There are many reasons for this failure and some are systemic. For example, there have long been tensions between those in legal academia and the practising profession about how the law curriculum can be most effectively developed. Despite many changes over the past two decades, the lack of strong, relevant and complimentary relationships between the practising and academic branches of the legal profession has continued to restrain the practice of law and the development of legal theory particularly in the ADR field. In addition, there are funding and staff resourcing issues that hinder the development of ADR teaching within Universities. Other factors could be defined as ‘cultural.’ ADR can be seen as a ‘soft’ option or not a real law subject or harried academics may simply not want to cede space within a crowded curriculum to another ‘newcomer.’The implications of not teaching ADR are significant. Producing law graduates who cannot meet the expectations of their clients and who are unable to contribute to the wider dispute resolution system is at best irresponsible and at worst is preparing law graduates to fail. The modern lawyer faces many challenges and significant competition from non law areas as well as a decline in ‘bread and butter’ legal work through the off shoring of legal services and trends to limit or replicate (using enhanced technologies) more traditional areas of work. Students who are limited to a restricted world view through an adversarial paradigm will be disadvantaged by their limited education as the justice system continues to change and rapidly evolve. Having untrained and poorly educated lawyers may have a negative impact on ADR uptake and use and lead to the establishment of ‘litigotiation’ approaches that mimic adversarial methods. In addition, ad hoc or no University law ADR teaching arrangements can have a broader impact on the ADR field by limiting the development of academic interest and contributions in this area.

Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law

The UCLA comparative project (1965-1978) exemplified and in some ways anticipated subsequent debates within comparative circles in general, and amongst comparative scholars in particular. Both disciplines have been destabilized by the decentering of the state as a result of globalization and neo-liberalism and also as a result of developments in legal theory and methodology. The rebuilding of comparative as a discipline depends on its ability to take these new developments into account. But paradoxically, to do so moves scholars farther and father away from law as it was traditionally understood, as well as from labor which is verging on anachronism as a sociological descriptor and political actor. The project of comparative must become part of an intellectually ambitious and highly complex study of the changing political, economic, social, cultural and psychological terrain of work relations.

Meeting the buddha on the road – An essay on christian scholarship

This essay looks at the christian theory of science from a very specific context. The essay is divided into two parts. In the first part two different (christian) theories of science, those of Dooyeweerd and Stoker, will be discussed. In the second part, these theories will be analysed against the background of recent developments in the theories of science and knowledge in the field of law and legal theory. The conclusion from the first part is that christian scholarship (and, conversely, a christian university) has nothing to do with the morality of either students or lecturers. It should also be clear that one cannot speak of “the” christian paradigm of science, but that there are various theories and paradigms. In the second part various problems with these two theories are discussed. These include the objectivist stance of both Dooyeweerd and Stoker, Dooyeweerd’s archimedean point of departure and Stoker’s use of socalled scriptural truths. These problems are highlighted by recent developments in legal theory of which christian scholarship must take cognisance.

Claims Analysis: Law, Logic, and Risk

Theme: Application of traditional logic and adaptation of methods from risk analysis enable the law to successfully resolve disputes. A claim to ownership may appear wherever some combination of cultural values assures reliability and exclusivity to the individual's decision. A valid claim must fit somewhere within the social contract to obtain recognition. The social contract is an agreement on risk and opportunity. There are two possibilities: either a person accepts opportunity and risk alone, or she shares them with others. Each society defines the specifics of the contract, but each uses the same general framework. 1. Each person has an exclusive claim to the fruits of her own labor. 2. No one holds an exclusive claim to wealth that has come to her through some method for which she is not responsible. There exists the possibility that the holder must share this wealth with others. 3. Each person must bear alone any losses that result from her independent actions. 4. Each person may demand that others help cover losses when the losses result from events outside her control. The four causes of change are the analytical method that links the client to an area of the social contract. Most commonly, the four causes are used to show that some area of human activity has become subject to rights legitimately held by the client. The four causes describe the situation before the client's problem started (material cause); the process that created the problem (efficient cause); the situation when this process was finished (formal cause); and the purpose of this change (final cause). The techniques of risk analysis measure the probability that the client's claim is valid. For example, the null hypothesis in science becomes the presumption of innocence in law. The law sets the limits of behavior that is so far from society's expectations that the behavior is illegal; here, the law applies the idea of a standard deviation. The burden of proof performs the same function as a level of confidence. But the law takes this technique a step farther. If the jury is persuaded to the relevant burden of proof, then a statement is accepted not merely within a range of probability, but as a certainty. That statement becomes the finding of fact. Comparing this finding to the pertinent legal standard creates the familiar syllogism where the law is the major premise, the finding of fact is the minor premise, and the judgment is the conclusion. A syllogism is a statistical comparison where the level of confidence is set at 100%. Developments in legal theory have paralleled developments in the natural sciences. The writing of John Locke and Sir William Blackstone (absolutes in law) paralleled the work of Sir Isaac Newton (absolutes in space and time). As Albert Einstein published his theories of relativity, Wesley Hohfeld identified eight fundamental legal relationships, each of which transformed itself in relation to the others. By century's end, Laurence Tribe wrote of the curvature of constitutional space much as gravity curves physical space.

The Chicago School and the Development of a Comprehensive Legal Theory: A Comment on Professor Crespi

I have read Gregory Crespi's (1997) discussion of papers in Malloy and Braun's Law and Economics: New and Critical Perspectives (1995) and been invited to respond to his comments on my article (Class, Entitlement and Contract) in that volume. Crespi accurately describes the basic features of the Chicago School and the thesis of my article. Moreover, his commentary on my article is for the most part quite positive. In fact, his primary question is whether the points I make in that article can be incorporated into the Chicago School framework. He concludes that they cannot, and I agree with his answer. Thus, my purpose here is not to defend my offering. Indeed, I appreciate his care and professionalism. What concerns me is the choice of the specific question he chooses to address, the implication of it being framed the way he frames it, and what I think follows from the answer-which I assume to be that we should continue look to the teachings of the Chicago School for guidance in legal matters. My view is that asking the question in a way that suggests that the Chicago School is the relevant paradigm slants the analysis, determines answers, and retards useful development of legal theory. To provide a framework for my comments, I will first very briefly summarize the substance of my article. I begin with the point that, in order for an agreement to be made, the parties must address, if only by implication, the issue of how the gain from the exchange is to be divided. This not a new idea but actually noted by

Legal Theory and Social Theory

While social theory and legal theory were once closely intertwined, contemporary American sociology pays scant attention to recent developments in legal theory. But the problems that legal theory currently wrestles with are very similar to those with which sociology is now centrally concerned. This essay reviews major schools of thought in contemporary legal theory to introduce sociologists to some potentially useful literatures on the meaning of rationality; on critical theory; on the importance of gender, race, and class in understanding social institutions; on the interpretive turn; on the relationship between structure and agency; and on the revival of pragmatism.

Definition and rule in legal theory: a reassessment of H.L.A. Hart and the positivist tradition

H.L.A. Hart's Concept of Law has had perhaps most profound effect this century on development of legal theory, laying foundation for a theoretical construct that has become effectively the modern juristic orthodoxy. Robert Moles's book sets out to radically reinterpret Hart's thesis and Positivist tradition. He argues that Harts's analysis is fundamentally flawed and, setting himself against a formalistic position shows how social, historical and intellectual contexts must play a fundamental part in legal understanding and justification. The author's conclusions have major implications for modern judicial law-making and legal codification by freeing them from bonds of Hart's rule-centred concept. Legal theorists; political and social theorists; philosophers.