Genesis Of Law Research Articles

Recht als Gegenstand rhetorischer Grundlagenforschung

Abstract According to the self-image of lawyers, jurisprudence is a science: the premises in legal conclusions are truth-apt, as are the conclusions or judgements that follow from them, the cognition of true law is consequently regarded as their task. Against this background, a program that understands and analyzes law as the product of a rhetorical practice is confronted with fierce resistance. According to the research of analytical legal rhetoric, on the other hand, the evidence for a rhetorical imprint on law is overwhelming: starting with the logical status of legal inferences, to the peculiarities of judicial procedure, to the motivational situation of those involved in it, everywhere it becomes apparent that the image of strict truth-orientation inadequately describes the genesis of law. Following Aristotle, who assigned law to the field of phrónēsis and not to epistēmē, contemporary legal rhetoric research aims to draw a realistic picture of the genesis of law. Subdivided into the triad of logos, ethos, and pathos, it attempts to fully grasp the interrelationships involved. It becomes apparent that the rational or argumentative dimension is far from dominating in legal justifications. It is precisely at the neuralgic point, i.e., where arguments are opposed to each other, that the rhetor typically uses a rhetorical figure that links all levels of the triad: the restrictio.

The genesis of law and morality in a philosophical and cultural context

The genesis of law and morality in a philosophical and cultural context

The Emergence of Law and the Process of Civilization

On the basis of comparative views on social theories that deal with the normative foundations of modern societies (such as those of Bourdieu, Durkheim and Luhmann), the genesis of law is examined in the light of Norbert Elias’ reflexions on the process of civilization. One crucial element is the surmounting of the traditional division between micro and macro structures, which, in Elias’ thought, can be achieved by taking into account the relation between sociogenesis and psychogenesis. The psychogenetic development serves as main focus, which - with regard also to Philosophical Anthropology - is examined in it’s effects on the emergence of legal awareness.

Impeachment: Apontamentos para uma pesquisa histórico-jurídica sobre a Lei nº 1.079/1950

The following article outlines a historical-legal study of the genesis of Law no. 1.079/1950 on the impeachment process in order to awaken lawyers’ critical conscience on legislators’ political options and understanding of the doctrine and jurisprudence surrounding the law. The methodology consists of presenting the repertoire of sources collected and to be collected, particularly the constitutional and legislative proposals on the subject, the debate on doctrine and the casuistry of the era, along with the national and foreign literature supporting it. The partial results reconstruct the Anglo-Saxon origin of impeachment, as well as its intimate relationship with the advent of the law and the attempts to implement parliamentarism in Brazil. It may be concluded that although studies on the institution may be useless in terms of the immediate practical reality, they are a vital component of a lawyer’s education on positive law in order for them to understand the challenges of their acting on the subject in a democratic society.

LOOKS of PROFESSOR V.H.DEMCHENKO (1831-1914) IN RELATION TO SHOWS OF WITNESSES AS PROOF IN RULE-MAKING IN TIME OF KYIV RUS

Historyof Law Kyiv Rus, without regard to the more than 200-years-old period of her research, continues to remain in the field of attention of scientists, and, also, politicians. One of important questions of History of Law these period is a question about rule-making and role in him shows of witnesses. This problem was studied thoroughly enough as early as ХІХ of century and one of active acting persons of discussion round this theme there was a historian of law, native of Ukraine, professor of the Kyiv university Vasyl Hryhorovych Demchenko. In the master's degree dissertation "Historical research is about the shows of witnesses as proof in matters of judicial, accoding the Russian law before Peter the Great" (in 1859), V.H. Demchenko considered becoming of such important institute of judicial law as institute of certificate in detail. A scientist marks the value of judicial proofs in general genesis of law, he underlines that before an arbitrariness was the only means of guard of rights, but development of society resulted in a volume, that next to this means already the guard of rights for cramps began to be used. He considered that the judicial aspects related to the shows of witnesses are system enough set forth in Russian True. A researcher paid attention to that Russian True talks about witnesses in most cases in connection with those the offences that must be by them validified, in accordance with every case, where this proof is required. Therefore resolutions about them matter general not rules that spread to all possible cases of their use, but touch only private, that have force only for those cases for that they are straight set. General rules some resolutions that is unconnected with determinations about separate offences matter only. A scientist underlined that the judicial role of witnesses accoding Russian True did not have been limited to only the value of them, as judicial proof. On occasion they got the certain participating in realization of process. It touched those judicial events application of that got to parties without every participation of some government bodies ( for example,zvid). In the research of V.H. Demchenko analysed a question about the capacity of witnesses for a certificate, specified also on space of application of proofs with participation of witnesses after Russian True, order of finishing telling with participation of witnesses, force of shows of witnesses. Thus, V.H. Demchenko no doubt, was one of the most skilled specialists on history law that investigated time of Kyiv Rus.

Effects of data protection laws on data brokerage businesses

For years now, players known as data brokers have operated on an unregulated market, by building businesses from the aggregation and processing of data, away from public scrutiny. Due to the genesis of laws that ended up exposing their model, along with debates on data privacy, a new generation of data protection acts, much stricter, are being enacted worldwide. The shift away from the data commoditization paradigm might, at first, indicate the extinction of such businesses. In this paper, we present related concepts and a brief history that led to that current scenario, along with some collaborativeoriented proposals for the adequacy of the data brokerage industry to a transparent perspective.

Paradigm Opposite of Nature of Ancient Greek Polis (reciprocal) and Roman Imperial (redistributive) Tax Law

The article substantiates: the ancient Greek reciprocal (tax) law and the ancient Roman redistributive one are paradigmatic opposite phenomena. They have nothing in common but some external formal features. The ancient Greek reciprocal law was that of the citizens of the ancient Greek polises. The ancient Roman redistributive law was the law of the ancient Roman Empire as a substantial state. The most fundamental among the causes of paradigmatic distinction between the ancient Greek reciprocal law and the ancient Roman redistributive law became the late-Antique mental, in particular, and the worldview on the whole, revolution in the ancient Roman imperial society and its legal thinking compared to the ancient Greek polis mentality and consciousness. As a result of that revolution the ancient Greek polis tradition discontinued and the ancient Roman, imperical tradition arrived. It became one of the most fundamental milestones in the evolution of human societies, states and law. The idea, dominant till nowadays in the minds of the most scientists, of the organic unity and direct continuity of Hellenism and Romanizm, of the existence of a unified ancient civilization is not more than a myth, a methodological error. The roots of this myth dates back to great antiquity and are simultaneously (but at different times in varying proportions) both, the consequence of incredible complexities of the process of sociogenesis, politogenesis, genesis of the state, anthropogenesis, genesis of law and other, regular and random evolutionary changes, and ordinary human, including cognitive, errors, and to some extent the result of a profound, precily considered and handled in a masterly way disinformation. This myth is so enduring that even today it is still practically impossible to predict, more or less reasonably, the time of its collapse. By virtue of that, everybody has to consider it while seeking to cognize the Antiquity and, through it, to learn the modernity.   Keywords: the ancient Greek reciprocal law; the ancient Roman redistributive law; the ancient Greek human-centered mentality; the ancient Roman state-centered mentality; late-Antique worldview revolution. https://doi.org/10.31861/ehrlichsjournal2017.01.013

Jewish and Islamic law: a comparative analysis

The present article is an attempt at examining the major distinctive features of Jewish and Islamic religious legal systems with special emphasis being placed on the peculiarities of sources of law and court procedures. The authors apply the method of comparative legal analysis in order to demonstrate the possible role of Jewish and Islamic law in the genesis of law. Refs 9.

Rileggendo Pašukanis: note di discussione

This article was published in Italian in 1973 and, together with an afterword written in 2016, has been offered by the author in re­ sponse to the theme of the current issue of Stasis. In this work, Negri insists on radical difference of Marxist juridical theory, de­ veloped by the most important Soviet legal theorist, Evgeny Pashukanis (1891–1937), and on the revolutionary foundations of his thought. In his analysis—against normalizing and institution­ al readings—Negri both meticulously and polemically recon­ structs these radical contents. He does so with impressive move­ ment from Marx’s analysis of value-form, the State and capitalist command, to Pashukanis’s analysis of relations of these elements to juridical forms and the genesis of law in bourgeois society. This substantial reading of Pashukanis, together with Negri’s own po­ litical thought that emerged in the 1970s and prefigured his later works on the juridical forms of the global “Empire,” is an impor­ tant contribution to political philosophy and Marxist legal theory, and is internationally available for the first time in English and in Russian. In his Postface, written forty years later, Negri resumes and updates his account in the view of current debates and litera­ture, and reconfirms “the greatness of Pashukanis’s work.”

Pelanggaran Persaingan Usaha dan Problematika Eksekusi Atas Putusan KPPU

The genesis of Law No. 5 of 1999 on Prohibition Monopili and UnfairBusiness Competition is expected to be a solution to the problem of unfair businesscompetition that had been rife in Indonesia, the Commission dirikanya spirit in orderto "mensehatkan" business competition in Indonesia. Healthy competition would have apositive impact on entrepreneurs who compete against each other or compete as it maylead to efforts to increase efficiency, productivity, and quality of product produced. Theresults of this study show that the breach of competition rife in Indonesia is bid rigging,In addition there are the problems in the execution of the KPPU decision. This paperwill discuss the tender conspiracy that inhibit competition and problematic execution ofthe Commission's decision.

О роли религии в аксиологической модели права Н. Н. Алексеева

This paper is devoted to investigation of destination of religion in the process of forming of the concept of law in determined cultural circumstances. This study is actualizes the essential link between comprehension of content of domain of law and concept of subjectivity. Nikolay Alexeev overcomes concept of subjectivity represented in philosophy of early modern period of European history, (primarily in the rationalistic tradition of Rene Descartes). The crucial significant in his concept of law is got neo-kantian axiology of Wilhelm Windelband and Heinrich Rickert. Following to neo-kantian thinkers Alexeev indicates, that genesis of culture is measured because a priori values are exist. Therefore individual is not a creator of these values per se. Value became the basis of Alexeev’s philosophy of law. Furthermore he elaborated axiological model of law onto religious foundation. Religion is a tool for initiating condition of values and there setting in political domain. Paper argued how religion conducts genesis of law. In that sense religion evaluated like a link between morality and law. Essential item of philosophy of law of Nikolay Alexeev is a superiority of Christianity in the midst of couple of religions in solution of problem in development of law. Author shows the historical role of Christianity in revealing of the idea of law per se.

Исторические особенности возникновения первичных уголовно-правовых запретов

The article considers different approaches to the issue of genesis of law. Examines the social nature and form of rules of common law. The author comes to the conclusion that existed in the primitive society-of prohibitions is taboo, in fact, were of a criminal-law nature, and taboo of, in spite of individual differences mechanism of action, is the su-community primary form of criminal-legal influence.

Jürgen Habermas on civil society vis-à-vis the Philippine experience

Jürgen Habermas assigns civil society groups ‘to bear a good portion of the normative expectations, especially the burden of a normatively expected democratic genesis of law’. This article looks at concrete attempts in the Philippine constitution to provide structures so that these groups can carry out the role Habermas envisages for them, and examines whether such attempts are sufficient to enable said groups to intervene in the political process as effectively as he expects of them.

The State and Law in the Ancient East A Round Table (Part II)

I. Sh. Shifman (Leningrad Section, Institute of Oriental Studies, Academy of Sciences, USSR). V. A. Iakobson has raised some doubtless very important questions with regard to the study of politico-juridical institutions in the ancient East. The general problems touched upon in his article are especially interesting. One of these is the genesis of law. Iakobson writes: At a certain stage in its development, society faces the need to set down in writing some of its most important norms, the purpose of which is to eliminate any misinterpretions, or to create a kind of "constitution," usually not too long.