Essence Of Law Research Articles

The Essence of Law in the light of Objective Idealism and Naturalistic Dualism

The Essence of Law in the light of Objective Idealism and Naturalistic Dualism

Dogmatism in Law in the Context of Increasing Complexity of Reality

It is believed that students engaged in law enforcement activities are more inclined to dogmatic methodology than students involved in civil law specialties. This is explained by the fact that a career in law enforcement attracts people who are authoritarian or dogmatic. The paper aims to question the role of criminal justice and criminal law in structuring dogmatism as the dominant structure of law enforcement thinking. Not only punitive justice and criminology are conditioned by dogmatic thinking. Even natural law is forced to construct a normative system, which is the only means of consolidating both punitive logic and usnaturalism. In addition, it should be noted that in the context of the imperatives of manageability of society, dogmatism is in demand in the penitentiary field, as well as in the broader legal field. Civil courts, administrative law, tax law, military law — all these subsystems depend on consensus in dogmatism to be effective, because law in its anthropological phenomenology is made by people. There is something deontically important about the participation of science in law. This is because our science and technology are embedded in the innovation mechanism of industrial society, while law remains one of the archaic tools born in the cliodynamics of myth, morality and religion. Dogmatism acts as an epistemic perspective, with the help of which law is presented in the purest possible form; its ability to express deontic truth is revealed. The hermeneutical approach to law without taking into account basic deontology is to work with specific cases, and not with what is the essence of law.

Kajian Filosofis Tentang Keadilan Sosial Dari Pemikiran Plato

Philosophical study of social justice from Plato's thought Throughout the history of philosophy, the topic of justice has been a very important topic. Theoretical thinkers such as utilitarianism, intuitionism, eudaimonism, perfectionism, liberalism, communitarianism, and socialism have discussed this topic. The core of political research from the time of Plato to the present is justice. Questions of fairness cannot be determined by the standards used to determine whether something is fair. Different versions of answers regarding the meaning of justice are often considered unsatisfactory, so they cannot be separated from the debate which ultimately constructs the meaning of justice itself, even into a relative formulation. This problem ultimately encouraged many groups to take an alternative path by returning the meaning of justice to those who set the laws and regulations and to judges who will develop their own considerations. This article will discuss the concept of justice from the perspective of Pre-Christian philosophers, especially Plato. Philosophically, there are two ways of expressing justice: First, the view that justice means harmony between the implementation of rights and the implementation of obligations according to the "balance of law" clause, namely "the scope of rights and obligations". The view of legal experts basically holds that justice is harmony between legal certainty and legal comparability. There are even those who argue that law must be combined with justice for it to truly have legal meaning. This is related to the answer that law is part of human efforts to create ethical coexistence in the world. Only through a just legal system can society live peacefully towards happiness, because the essence of law is to create fair rules in society.

The Fourth Industrial Revolution and the New Path of Law

The contemporary accelerating changes in technology lead to drastictransformations in economy, social and political structures, as well as legal practice andthe very essence of law. The present research is a try to bring to the light the evolutionof industrial revolutions and realize the transformations and developments of law andlegal practice throughout the First, Second, Third and Fourth Industrial Revolutions.Taking into account the consequences of the previous industrial revolutions andthe ongoing nature of the Fourth Industrial Revolution, the research defines somegeneral developments / paths in the law, especially the transformations in legal practice(Practical Perspective); transformations in teaching law (Educational Perspective) andtransformation in the essence and perception of law itself (Theoretical Perspective).Based on the research two possible social structures, with economic, political andlegal order, have been proposed: negative and positive.

THE CRIMINAL LAW SYSTEM IN INDONESIA FROM THE PERSPECTIVE OF PANCASILA

Since the implementation of Law Number 1 of 1946, Indonesia's Criminal Code has witnessed continuous reforms in material criminal laws, formal criminal laws, and criminal law enforcement. These three components are interconnected, necessitating comprehensive reform. The 2012 Criminal Code Bill aimed at achieving sentencing goals and brought about three types of updates. The first type includes main punishments like imprisonment, cover-up punishment, supervision punishment, fine punishment, and social work punishment. The second type specifically entails the death penalty. The third type comprises additional punishments such as revocation of rights, confiscation of goods or invoices, judge's decision announcements, renewal of criminal sanctions for losses, and fulfillment of local customary obligations. Criminal punishment theories emphasize improvement and prevention from an instrumental perspective. Punishment serves as an instrument to achieve goals beyond itself, like rehabilitating offenders or protecting society. The nature of punishment must align with these objectives, rendering punishment valuable in the pursuit of those ends. However, instrumental theory also allows for alternative means if more efficient. For Indonesia, the essence of law according to Pancasila emphasizes godliness, humanity, unity, democracy, and fairness. Pancasila serves as an ethical benchmark for being a complete Indonesian human being, adhering to Indonesian laws, and guiding behavior toward others and the environment. As society evolves, the law must remain dynamic and adaptable to societal needs. An appropriate legal system in Indonesia should be grounded in the values and culture of the nation, particularly Pancasila, the nation's foundational philosophy. The national legal system must align with Pancasila's ideals to maintain harmony and justice in the Indonesian state.

Связь государства и права в концепции правопонимания Н.Е. Чижова

Law, as a phenomenon of civilization and culture, has been studied in science for more than one century. The greatest minds of mankind have tried to penetrate into the essence of law, to know the nature and define its concept. The scientific article is devoted to the analysis of the concept of law, set forth by the outstanding Russian jurist N.E. Chizhov (1853–1910). Scientific searches of N.E. Chizhov are associated with a legal understanding based on the norms of law, because they determine the external behavior of people in their life together. The scientist criticizes the theory of natural law, believing that the right is realized only in collective education with the interaction of people. This approach is consistent with the modern development of society, the values of which are: social partnership, economic, political and social solidarity, mutual trust of the state and society. The purpose of the study is to analyze the scientific works of N.E. Chizhov devoted to the concept of law and its relationship with the state. Emphasis is placed on understanding the nature of law through the nature of society and the state. The research methodology includes a wide range of scientific methods, in particular, universal (dialectical method), general scientific (analysis and synthesis), special (historical-legal, source-based method) and other methods of scientific cognition. The result of the conducted research was the conclusion about the demand for scientific knowledge of N.E. Chizhov in modern jurisprudence.

The legal doctrine of natural law in the regulation of social relations based on the rule of law

The article is devoted to the philosophical and legal problems of the value aspects of the legal doctrine of the ideas of natural law in the regulation of social relations, which within the existing legal doctrines are designed to enrich the legal toolkit, to reveal the essential properties of law as a phenomenon.
 It was found that the term «doctrine» in relation to legal and state understanding covers all essential properties and approaches to these phenomena. Relying on the scientific achievements of legal scholars, it is possible to find out the essence of law and the state, and later, to take this knowledge as a basis for law-making activities for the formation of legislation and for its full interpretation.
 It is emphasized that, based on the statements of scientists, legal doctrine should be understood as a complete and harmonious system of principles, views, ideas, ideas, concepts, which forms the foundation of legal understanding, through which it has a direct influence on law-making and law enforcement.
 It is noted that the essence of a person is to fully exist, to ensure his livelihood, without violating the rights and freedoms of other people, and to contribute to the restoration and preservation of peaceful and humane coexistence of mankind in the globalized space. Therefore, a person's right to life, to observe the principle of preserving human dignity and all the needs arising from this can be considered natural in the essence of a person.
 The doctrine of natural law in no way opposes its ideas to the positivist approach, but on the contrary, allows to prevent the arbitrariness of norms adopted by the state regarding the honor and dignity of a person. The valuable aspects of the doctrine of natural law consist in the general human perception of natural-law norms as divine (for a believer), natural-physical laws of the construction of the universe (for materialists).

НАУЧНЫЙ ПОДХОД Н. Н. АЛЕКСЕЕВА К ВЫБОРУ ПУТИ КУЛЬТУРНО-ЦИВИЛИЗАЦИОННОГО РАЗВИТИЯ РОССИИ

The article is aimed at updating the political and legal discourse on ways to improve the state system in Russia. The author proposes to comprehend the works of N. N. Alekseev scientifically and critically, who proposed the theory of a righteous (guarantee) state. The article proves that this model corresponds to the mental characteristics of Russians and at the same time is based on the universal values of freedom, equality, truth, peace, harmony, unity, justice, which are the essence of law. The author concludes that the key ideas and scientific approaches of N. N. Alekseev not only remain relevant but can also be an example of a theoretical justification for the development strategy of the Russian state.

К вопросу о современном состоянии теоретической науки канонического права

Subject. The article analyzes the theoretical, legal, theological and philosophical aspects of canon law. Goal. Analyze the current state of the theoretical science of canon law. Method or methodology. The research is based on methods of analysis of legal sources, as well as methods of induction and deduction. Results of the work. The role of methodological principles in conducting scientific research has been determined, the scientific approaches responsible for solving the problems of church legal science have been systematized, a number of current scientific directions in this area have been detailed, and the reasons for the lack of development of the basic definitions of canon law have been established. Conclusions. The essence of law and the phenomena formed by it is difficult to comprehend in practical jurisprudence. Even the general theory of law uses for this purpose the unique achievements of other humanities: philosophy, sociology, political science, theology, history and others.

Entrechtung erfahren

Abstract Texts that bear witness to the extremes of the 20th century, from the Shoah to imprisonment in camps, to the experience of torture, or the Gulag, describe the individual experience and, at the same time, a process that points beyond one’s own fate and has something to do with the essence of law. The authors describe a concrete and fundamental sense of the legal status of an individual. Simultaneously, the legal principle is touched, violated, and destroyed, on which selfhood, and with it, an interpersonal sense of being human is based.

The Application of The Principles of Legal Assurance, Justice, And Expediency in State Civil Apparatus Dishonorable Discharge a Study of Civil Court Judgment Number 164/G/2019/Ptun-Jkt

Justice is the essence of law. Its existence must be in line with legal assurance and legal expediency. The slow execution of the government in carrying out the order of the State Civil Apparatus Law for the dishonorable discharge of state civil apparatus employee because of the malfeasance they committed raises the problem of substantive justice. The judges’ verdict of the Jakarta Civil Court that adjudicated the dispute regarding the dishonorable discharge, granted the request of the concerned civil servant. This study aims to analyze the application of the principles of legal certainty, justice, and expediency in the judge verdict of the Civil Court no. 164/G/2019/PTUN-JKT. The research method is in the form of juridical, mainly from secondary data, exploratory analytical typology with a qualitative approach. The results of the study show that judges apply the principles of legal assurance, justice, and expediency in a balanced manner by considering the chronology and legal facts in the process of civil servant dishonorable discharge. At the same time correcting the government's legal actions by elaborating the principles contained in positive law.

The Category of Legitimate Interests in the Context of a Single Concept of Legal Understanding

The paper investgates problems of legal proceedings in civil and arbitration cases and ways of their resolution using procedural possibilities conceivable in the philosophical and legal formulation of the problem. Interests (legitimate interests) have been chosen as a very indicative and demanded category with effective instrumental properties. The study of their categorical features is included in the context of the analysis of a single concept of legal understanding. The unity of the concept of legal understanding as a common rational basis for taking into account the achievements of non-legal sciences, primarily philosophy, in the formation of a consistent view of law is opposed to the competitive «uniqueness» of traditional views on the essence of law and appropriation of a monopoly on truth. When revealing the unity of the concept in relation to the unity and generality of the approach to the philosophical and legal, general theoretical ideas of law, problems of the theory of the civil process, and their subject law enforcement imprint, special attention is paid to the analysis of the category of the ideal and transition from it to the category of the rational in the form of a comparison of personal and social experience, as well as their association with the form of judicial protection of rights and interests.

Philosophy of Law in a Non-Legal University: to the Problem of Building a Master’s Program

The article analyzes the issues of legal education in non-legal educational institutions of higher education. The authors of the article believe that legal education is one of the constituent elements of the modern socialization of the individual. The level of legal culture of society as a whole depends on its successful solution. The authors pay attention primarily to the philosophy of law. Consideration of the place of this academic discipline in the system of teaching masters in the field of “theology” allows us to draw conclusions about the importance of the philosophy of law in higher education. The authors believe that the philosophy of law contributes to the formation of a holistic sense of justice and a holistic legal culture. The philosophy of law is focused on finding answers to such questions as: “What is the essence of law?”, “What is its nature?”, “What is the relationship between law and other social norms?”, “Is every law correct?”, “What is the path to legal law?”, “What is legal consciousness?” etc. These issues are especially relevant for specialists in non-legal fields of knowledge. The authors of the article believe that legal education in our country contributes not only to the transformation of our society into an active participant in the global legal system, but also becomes a factor in protecting civil society from unfair actions by various actors.

Концепция «Smart Regulation» как инструментальная составляющая устойчивого развития

Introduction: today, there is an interest in the problems of Western legal science in our scientific community, due to its great desire to solve specific social problems and tasks in comparison with the domestic academic tradition, focused more on essentialist problems about the essence of law and the state, their forms, purpose, ultimate foundations, laws, etc. One of such instrumentalist concepts of Western discourse is the concept of “smart regulation”. The purpose of the paper is a theoretical understanding of the key aspects of this concept. Methods: analytical, deductive, comparison, generalization. Results: the origins of the formation, the essence, principles, means and procedures of the concept are revealed. The role and significance of the effect that allows designating any regulation as “smart” are revealed. Conclusions: the traditional legal regulation based on the ideology of vertically integrated structures with rigid centralization of the political and economic system can be supplemented and balanced by the principles and achievements, means and procedures of the concept of “smart regulation” for the common good. Without such a combination of approaches to the regulation, it is not possible in modern conditions of a highly integrated world economic system to harmonize the social interests of various groups around one goal: the growth of public welfare.

Evolution of legal understanding in Western philosophy

The article is devoted to the analysis of research approaches to legal understanding in Western philosophy, starting from the ancient Greek period and ending with the second half of the 20th century. The aim of the work is to form a comprehensive understanding of the historically changing types of comprehending law (including, such areas as naturalism, moralism, traditionalism, normativism, positivism, sociologism, and realism) revealed in three aspects: formation factors, essence and criticism. The work was carried out within the framework of the modern scientific paradigm, which implies taking into account the plurality, complementarity and interdisciplinarity of approaches to the study of the surrounding world. In the context of evolution methodology, attention is drawn to the conditions of diversity, «heredity» and «mutation» of existing and existed types of philosophical views regarding the nature and essence of law. As a result of the study of the legal positions of such thinkers as Plato, Aristotle, Cicero, Thomas Aquinas, Grotius, Suarez, Pufendorf, Coke, Hale, Blackstone, Hobbes, Bentham, Kant, Austin, Kelsen, Hart, Raz, Dworkin, Fennis, Ross, and Llewellyn, an attempt was made to demonstrate the evolution of philosophical reflection on the factorial transformation of social and state reality, which contributes to “stitching of matter” of Western ideas about legal reality. The area of research implication correlates with the range of interests of scientists and professional subjects of the political and legal sphere interested in objectifying knowledge about the traditional foundations of European legal understanding, which manifest themselves in modern law enforcement practice. It can be concluded that the emergence of philosophy of law paradigms, which signifies “adaptation” to the challenges of the modern era, will ultimately determine how law and legal institutions will be understood and developed in the future.

Проблема праворозуміння у сучасному суспільстві: управлінський аспект

Проблема праворозуміння у сучасному суспільстві: управлінський аспект

ПОТРЕБОВИЙ ПІДХІД У ДОСЛІДЖЕННІ ПРАВОВИХ ЯВИЩ: ВІТЧИЗНЯНИЙ ТА ІНОЗЕМНИЙ ДОСВІДИ

The article is devoted to the comparative legal analysis of domestic and foreign experience of the needs approach. It is established that Professor P. Rabinovych made a significant contribution to the development of the issue on the importance of legal regulation to meet the needs of the domestic general theory of law. He was the first to introduce into scientific circulation the term «needs approach» as the idea that the essence of social phenomena are those useful characteristics that can be used by man and society to meet their needs and interests. Associate professors V. Bigun, R. Gavrilyuk, D. Hudyma, Y. Loboda, O. Pankevych, A. Rabinovych, as well as Professor S. Rabinovych and others developed his ideas on the application of the needs approach in their scientific works. Consequently, R. Gavrilyuk defined that law is a way of normative existence of an individual in the society based on the freedom of expression to satisfy his/her personal (private) and general (public) needs on the basis of freedom, equality and justice. O. Pankevych applied the needs approach to establish the essence of the social state, as well as to define the concept of social law, its subject, method and status in the system of positive law. D. Hudyma used the term «need» to reveal the meaning of «the essence of law», to define the need-researching approach as a kind of anthropological approach and argues that «law is objectively designed to help meet human needs.» A. Rabinovych noted that at least two preconditions must be provided for the use of the needs approach: 1) it is necessary to comprehend the general understanding of the needs of subjects, as well as to identify the main types of these needs through their classification; 2) it is necessary to acquire a meaningful knowledge of general social, group and individual needs in the society in which the studied phenomenon was formed and exists. It is found that in the modern European and Australian scientific literature, the theory of the needs approach as a justification of human rights has become somewhat widespread. Fundamental representatives of these theories are Czech jurist Martin Gapla, British political scholar David Miller, professor at the Royal College of Great Britain Massimo Renzo, professor of medical ethics at the University of London Len Doyal, professor at the British Research Center for Social Exclusion Ian Gaff, as well as the Australian scholar James Griffin. The essence of the above approach, in their opinion, is the following: – human needs, namely universal, are the basis for human rights. Such human rights are considered «real» and are able to create and ensure a dignified human life; – people with full capacity are «regulatory agents», that is their needs, the number of which grows over time and are constantly improving, serve as a basis for the creation of regulations, making them, thus, both a guarantor and a tool to meet them; – the effective functioning of legislation depends on the successful functioning of means and mechanisms to meet human needs, which legitimize certain rules of law.

KEADILAN DALAM OPTIK HUKUM ALAM DAN POSITIVISME HUKUM

<span>Natural law always measures and evaluates law in terms of justice, justice is an inseparable part of law, therefore the essence of law is justice. If the law is not fair, then according to natural law it is not law. Meanwhile, legal positivism measures and evaluates the law from the perspective of formal justice. The priority of justice as in natural law, is not a priority in legal positivism. For legal positivists, the most important thing is what the law is, not how the law should be. Even outside the law there is no law, the law must be in written form, to be able to provide legal certainty. With the different points of view of the two schools of law, until now there is no common ground between natural law and legal positivism in formulating justice. Each is adamant and differs in determining justice. Natural law is always ideal and places justice in the highest place. Justice is a priority that is non-negotiable and becomes the spirit of the law. Therefore the law must be fair and just is a constitutive element rather than the law. Meanwhile, justice in the perspective of legal positivism is limited to formal justice/procedural justice, or in other words, formalism justice that prioritizes form (written law)</span>

"Truth" and "Law" in Russian Legal Consciousness: Conservative and Theological Motives

The article analyses the problem of correlation between the categories of "truth" and "law" in Russian legal consciousness. The authors focus on the study of this issue mainly on the example of Russian conservative thought, justifying it by the fact that of all the theories of legal understanding only conservative legal ideology was able to express the traditional perception of law for the Russian legal consciousness. It was conservative legal scholars who drew attention to the fact that the essence of law in Russian culture is determined by the traditional worldview, which was formed back in the V-IX centuries and continues to dominate at present. It is noted that traditionally Russian legal consciousness in contrast to the European is characterized by such features as syncretistic unity of religious, moral and legal principles, united by the ideal of Pravda; the prevalence of internal, conscientious over external, formal legal side of law; lack of tangible influence of Roman law on the Russian legal tradition to the beginning of XX century. The priority of the ideals of collegiality, social service and duties; the prevalence of customary, unwritten law, expressing the people's ideals of truth, conscience, and justice. Based on the works of Hilarion, I.S. Peresvetov, I.T. Pososhkov, A.S. Khomyakov, I.S. and K.S. Aksakovs, I.V. Kirievsky, I.A. Ilyin, A.I. Solzhenitsyn, they come to the conclusion that the tradition of distinguishing law and law, pravda (grace, conscience) and formal jurisprudence is deeply rooted in Russian national culture. However, disobedience to external, positive law was justified by conservatives only under the condition of the spirit of law - the provision of religious and moral pravda. Morover, following the "letter of the law" only leads in specific legal situations to an unjust and immoral legal solution.

How to Overcome Impotence of Environmental Law in the Age of Anthropocene: Foundations of Ecocentric Law

INTRODUCTION. This scientific article discusses the reaosns for inefficiency (“impotence”) of modern environmental law as a normative reaction to the “destruction of Nature”. The scope of the destruction of Nature has been broadening. The environmental protection law has thus not influenced the resurrection of “destroyed Nature”.MATERIALS AND METHODS. Consistent with explanatory and theory–building research, the methods used are those of historical legal research as well as general scientific methods, such as analysis, synthesis, analogy, description, and deduction. RESEARCH RESULTS. The essential reasons for the current excessiveness (intemperance) of man's interaction with Nature (the reasons for the “destruction of Nature”) and/or reasons for the inefficiency of the modern environmental law should be sought for in the dominant anthropocentric cultural paradigm of the western cultures oriented towards an un-limited material progress. If anthropocentrism (exploitativeness) as the basis of human utilitarian interaction with nature has led to the “destruction of nature,” there is no doubt that the ecological reason remaining within the anthropocentric construction of Nature can not lead to its “resurrection”. Only the setting-up of the ecocentric construction of Nature may lead to the “resurrection” of Nature. This orientation must be followed by the nomos of the western cultures. A new law of nature on the basis of the new, ecocentric ontology and ethics is therefore necessary.DISCUSSION AND CONCLUSIONS. In this article, the basics of a new ecocentric legal philospohy as the foundation of modern environmental law have been proposed. The scientific realisation of man's equality in the network of co-dependent natural entities in the last decades shows man his initial position – that is his (equal) postition in Nature. The determination of the rules of conduct which man must respect in interaction with Nature implies an expansion of the idea of law itself (justice and correctness) towards the interaction between man and Nature and not only the interaction within human community. Consequently, the economic interaction has to be maintained within the framework ensuring the vitality of other biotic communities. Also, incorporation of Nature in the very essence of law inevitably triggers a redefinition of legal values. The natural equilibrium, i.e., the equilibrium of life (including human life) becoming a legal value, we could speak of the expansion of the legal subject, i.e. the expansion of values which are the subject of legal protection. The initial position of the natural equilibrium addresses the issue of relationship of the new legal value towards the existing fundamental legal values of the western cultures. The enforcement of the maintenance of natural equilibrium may also demand a limitation of another legally protected value, for example, the right to the freedom of movement or some other human right. The new value, i.e., the maintenance of natural equilibrium, must be incorporated in the “contracts of statehood”, that is in the constitutions of the western countries as one of main legal values, next to “freedom”,“democracy” and “private property”. The entry of Nature in the western (legal) value system is a conditio sine qua non for an efficient change in the legal order and, most importantly, for a change in man's attitude towards Nature in everyday's life.