Legal Thinking Research Articles

A dimensão ética da hermenêutica jurídica: repensando o interpretativismo de Ronald Dworkin a partir de Hans-Georg Gadamer

Does the so-called interpretive turn in legal theory have an ethical dimension? Based on this guiding question, for these reasons, this essay aims to reflect over the connections between normativity and interpretation. To do so, it proceeds as follows: briefly reconstructs the “Hermeneutic Turn” in contemporary Legal Theory, punctuating the interpretativism of Ronald Dworkin; exposes the recent ethical developments of Gadamer’s work; explores the consequences that an “hermeneutical ethics” could have for legal thinking; revisits the comparisons that Jürgen Habermas had made between juridical hermeneutics of the Gadamerian matrix and the Dworkinian interpretivism in Chapter 5 of Law and Democracy.

The ‘question of possibilities’ as a leitmotif for re‐imagining law for the ‘Anthropocene’

AbstractThe Anthropocene thesis, albeit not an unproblematic starting point, foregrounds the inadequacy of tacitly reproduced assumptions, theoretical dispositions, and conceptual repertoires which have supported a critical mass of legal thinking and praxis. Acknowledging the disruptive effects of the ‘Anthropocene’ for law, my aim in this article is to make explicit that re‐imagining law for the Anthropocene requires letting go of dominant ways of thinking and doing law, while enabling more adequate conceptions and modes of engagement to take hold. I suggest that the process of re‐imagining law for the Anthropocene requires navigating a space of continuity and break that demands the legal discipline to confront questions about disciplinary identity and responsibility. Reflecting on what the process of re‐imagining law might entail and how it could unfold, I propose the ‘question of possibilities’ as a leitmotif and ask: What could law become? In so doing, I map out concrete strategies and commitments which might inspire and encourage engagement with this question. These include: a practice of radical self‐reflection, the cultivation of a generative outlook, the acknowledgement of legal multiplicity, and a persistent commitment to meaningful change.

FATWA INSTITUTIONS IN ISLAMIC LAW

Fatwa is one of the products of Islamic legal thinking in the form of ijtihad of scholars who formulate a formula for legal provisions in response to questions raised regarding various aspects of law. The fatwafatwas of the Ulama have a casuistic nature and tend to be dynamic regarding problems in society that are important to know about the legal provisions of the Islamic community. These fatwafatwas are contributions to the development of Islamic law in particular and national law in general.

Place-based pedagogies of hope

AbstractThe need to engage students in thinking about the politics of law, especially in a time of escalating climate and other crises, is increasingly urgent. In this paper, we discuss a series of place-based teaching strategies designed to foster critical legal thinking, but also hope and a sense of agency. Inspired by a range of scholars – Bruno Latour, Doreen Massey, Henry Giroux and J.K. Gibson-Graham – we use context in an effort to cultivate what Giroux calls ‘educated hope’. Our starting point is what the law does (and also what law does not do and what it could do), not what the law is. Instead of taking a field of law and then using examples to illustrate how it works in context, we discuss three courses that start with the context of a particular place. Our courses cover a range of laws that work together to shape that place, spanning multiple fields, and emphasise their peopled and place-based specificity. After discussing teaching and assessment strategies that we have found productive, we reflect on implications beyond our courses, and the potential for broader place-based legal pedagogies.

Teaching Legal Reasoning to Law Students in Pakistan: Need for Reforms in LLB Curriculum

Abstract Legal education is the method for preserving the rule of law, which is the fundamental premise upon which contemporary nations political and legal underpinnings are built. Legal thinking skills are one of the primary characteristics required of legal practitioners. It is also emphasized in legal education as a primary goal. In Pakistani law schools, the notion of legal reasoning is frequently addressed but rarely articulated. However, in Pakistani law schools, the actual teaching of a skills method approach to legal reasoning as a process and a concept has rarely been properly described. Legal reasoning is not included in the LLB curriculum, which is a fundamental flaw in the legal education system. Legal reasoning will provide law students with a skill that will help them to secure their careers and may be used in a variety of disciplines. This paper will argue that the existing LLB curriculum in Pakistan needs to be reformed and legal reasoning should be included as a subject.

Legal Regulation of State Financial Support for Agricultural Producers on the Grain Market of the Russian Federation

Author studies the measures and programs of state financial support provided to agricultural producers, as small and medium-sized businesses, in the grain market of the Russian Federation, and make proposals for its optimization. During the study were used methods of analysis, synthesis, generalization and formal legal thinking. As result of the research author concludes that financing of small and medium-sized businesses in Russia is still developing with significant state support. Agriculture, due to its characteristics, is subject to increased state regulation. As a result of the study, it is noted that today there are indeed many stimulating and compensatory measures of state financial support. However, there are a few problems in the implementation of this mechanism. As a result of the study, measures are proposed to improve the mechanism of financial support and increase the availability of financing for agricultural producers, in particular regions and remote areas. The theoretical and / or practical significance is determined in the generalization, conclusions and proposals that can be used for subsequent work in the direction in order to improve this institution, as well as in rulemaking by the legislative bodies of the government of the Russian Federation. The novelty of the work lies in the proposal to conduct a diagnostic study of the state of financing of agriculture, in particular grain markets, with a view to the possible implementation of some successfully implemented financing programs. As conclusion, author presented proposals for improving state support measures to increase the availability of financing for agricultural producers, in particular the regions and remote areas of the country.

TRANSNATIONAL ORGANIZED CRIME. CONCEPT AND DEFINING CHARACTERISTICS

In this scientific approach, we have proposed to briefly analyze the evolution of legal thinking in the conceptualization of transnational organized crime after the adoption of the United Nations Convention against Transnational Organized Crime on November 15, 2000, which became the first universal treaty through which the key concepts of the cooperation of states in field. Similarly, in this article we will analyze the main definitions proposed by doctrinaires of the concept that constitutes the object of the research by highlighting its distinctive features.

Promoting Constitutional Literacy: What Role for Courts?

AbstractThis article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws, however, and we should be cognizant of limits regarding what can realistically be expected of courts in furthering popular constitutional knowledge. Notwithstanding room for improvement in the design and delivery of constitutional literacy, the existing judicial efforts when viewed in their entirety should be evaluated positively as making a meaningful contribution in meeting people’s interests in greater constitutional knowledge.

Current issues of digitalization of criminal proceedings: a look into the future

The authors point out the main problems of the transformation of criminal justice. Which rest on the need to reform the entire system of the branch of law, as the digitalization of any sphere of activity requires changes in formal and constitutional institutions, culture, as well as the creation and use of AI artificial intelligence systems, the creation of technological capabilities to analyze huge amounts of Big Data and the protection of personal data. This is a condition of digital transformation.In the formation of a strategy of digitalization of criminal justice in the Russian Federation, according to the authors, there is a stalemate, which is difficult to resolve. On the one hand, criminal justice is a procedural institute, which operates strictly within the system of regulations, on the other hand, the digitalization of criminal proceedings requires huge changes in the sphere of law in general and in its individual branches.From the technological point of view, we see from the example of some business projects that such processes of some sectors of the economy are feasible. To build a technological platform for criminal proceedings is currently possible, it requires a transition to electronic criminal records (with minor amendments to the RF Criminal Procedural Code), to implement artificial intelligence and “drive” it all into technologies for processing large heterogeneous data Big Data, OLAP and DataMining. The problem lies not in the impossibility to change the existing legal model of criminal procedure and other procedural subjects, but in the fact that law enforcement is carried out between values where logic is powerless, where thinking is carried out in the form of understanding. And the necessary condition for understanding requires intuition and empathy as the most important elements of legal thinking of the law enforcement officer. Artificial intelligence cannot have them.In other words, in some parts of the law enforcement will be possible to create some kind of digital platforms, which will not meet the whole concept of building a sectoral platform, the consequence of these particular transformations is the fact that a co mprehensive digitalization of criminal justice is not expected in the near future, in view of the thin matter of science – law.

Legal Scholars Engaging with Social Anthropology: Hardships and Gains

AbstractThis special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.

Administrative Independence in the Nordic States

EU law increasingly requires that the Member States establish independent administrative bodies in various fields. Examples include market supervision, non-discrimination, and data protection. This article addresses the realisation of such requirements in the five Nordic states. The West Nordic systems of Denmark, Iceland, and Norway feature a traditional hierarchic organisation of the administrative authorities under the relevant ministries, albeit with examples of independent administrative bodies. Contrastingly, the East Nordic systems of Finland and Sweden have a long-standing constitutional tradition of organising the entire state administration with a considerable degree of independence from the governmental level. The study of the constitutional frameworks and traditions contributes to understanding the impact of EU law requirements on independence in different national systems. The relatively uncritical reception of requirements on administrative independence in the Nordic states may be explained by both the practical orientation of Nordic legal thinking and the long-standing existence of arrangements of independent authorities in the legal systems. This attitude is contrasted with the sceptical views on administrative independence in continental Europe, especially Germany, as exemplified by Case C-518/07 Commission v Germany (on independent national data protection authorities). Also the Nordic experiences, however, highlight the tension between the ideals of total independence and the needs for the authorities to be linked to, and funded by, the public sector. The legal comparison may help to understand the impact of EU law and reveal the various ‘Europeanisations’ of general administrative law, given the national preconditions.

Territorial Rights for Individuals, States, orPueblos? Answers from Indigenous Land Struggles in Colonial Spanish America

Who should have rights to territory? Dominant political theories hold that either individuals or state-based groups (states, nations, or state-based civic peoples) have foundational territorial rights. However, they cannot accommodate some Indigenous peoples’ claims that the land should be subject neither to private ownership nor to sovereign state control. Given these claims, some scholars have recently revised these theories to mediate between state jurisdiction and private property. But those revisions have thus far neglected the views of Indigenous peoples who did not experience Anglo-American settler colonialism. This article therefore examines contemporary territorial rights theories in light of the experience of colonial Spanish America. Using sixteenth-century documents in which Indigenous communities conceptualized and asserted their rights to territory, historical evidence of political struggles between these communities and the colonial state, and interpretations of colonial legal thinkers from the seventeenth century (particularly Juan de Solórzano Pereira), I argue that, in addition to individuals and state-based groups, we should consider another subject of territorial rights:pueblos,or grounded communities.

The Proposal of Constitutional Complaint for the Indonesian Constitutional Court

The research focuses on the proposal of a Constitutional Complaint for the Indonesian Constitutional Court. The background causes of the constitutional weakness to protection and fulfilment of constitutional rights, especially the absence of a Constitutional Complaint mechanism. Research methods used normative legal research methods with statutory, analytical, and case approaches. The study results show that legal thinking, including an embodiment of the values of constitutionalism in the rule of law of Pancasila, complements a checks and balances system, the basis for protecting fundamental rights, and aims to realize good governance. There are several steps/ methods to giving this authority, amendments to the 1945 Constitution, non-original interpretations, and revision of the Constitutional Court Act. Several objects of dispute are the Court’s verdict, the problems of interpreting the 1945 Constitution and law by a state official, People Consultative Assembly decisions, and others.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

Islamic Legal Thought Implementation in Indonesia

Islamic law is a system of law derived from the Qur'an and hadith, which subsequently evolved from legal philosophy. The result of legal thought is the production of legal documents based on the requirements of the community. In Indonesia, Islamic law grows and evolves in the form of four products of legal thought: fiqh, ulama fatwas, court rulings (jurisprudence), and laws. In Indonesia, the four products of legal thinking serve as rules for Muslims in national, state, and social life. This study sought to identify the outcomes of Islamic legal thinking in Indonesia. The technique employed is qualitative. According to the findings of this study, Islamic legal thought in Indonesia is comprised of the products of fiqh thought, fatwa thought, court decision thinking (jurisprudence), and legal thought. This product of Islamic legal philosophy touches on the order of Islamic society and, despite being independent of sharia law, can serve as a firm legal foundation.

Post-industrial Culture of Law-making: a New Image of Reality

The leading factor of the transformation of the legal sphere of post-industrial society is the technological challenges that create risks of technological and legislative singularity. The legal culture is transformed in connection with the formation of a new worldview and legal thinking. The purpose of the study is to determine the factors, patterns, prospects and risks of transformation of the culture of law-making in post-industrial society. The result was the identification of factors of the transformation of the culture of law-making. The increase of the technological component in the composition of the law-making culture of post-industrial society has caused such patterns of its transformation as the symbiosis of legal and digital technologies, the blurring of the lines between the object and the subject, the object and the result of law-making. Prospects for further transformations of the culture of law-making are revealed — acquiring new functions, transforming the system of law and restructuring its sources, innovations in the subject and object composition, stages and technological component of law-making, its inherent terminology. Human-machine interaction, hybridization as the main features of the emerging “digital” culture of law-making not only has advantages, but also carries serious risks, the management of which, along with the proactive impact, becomes the most important function of the law-making culture of post-industrial society

THE STATE AS «INTELLIGENT LIFE OF SELF- CONSCIOUS FREEDOM»: PHILOSOPHICAL AND THEOLOGICAL ASPECTS ACCORDING TO HEGEL’S INTERPRETATION

The theoretical substantiation of the idea of freedom as a positive expression of the essence of human existence with reference to its Christian theodicy meaning («freedom is the supreme gift of God to man») is contained only in the German classical idealism with its systematic interpretation of the idea of the subject. As such, the concept of freedom became for German classics the basis of a new paradigm of philosophy of law, an alternative to both traditional natural law and social contract theory. Based on this paradigm, the Hegelian concept of the state can be considered as one of the sources of the sovereign Russian philosophy of law. Purpose: to highlight, in relation to the idea of the state, the main points that reveal the Hegelian concept of freedom as the most profound definition of the essence of human existence. Methods: the authors use such methods as logical, historical-genetic, historical-comparative, systematic method of cognition, as well as the methodology of theoretical and legal comparative studies. Results: the idea of universal foundations of statehood is an integral part of legal thinking. It is mediated by the concepts of morality, personal freedom, law, which historically were revealed both in rational philosophical-legal, and in theological discourses. Hegel’s understanding of the state as «intelligent life of self-conscious freedom» is realized by him in interconnection of history of state and religion, where each historical stage expresses necessary forms of this self-consciousness.

The Arctic from the perspective of the English school of international relations: a novel research agenda

ABSTRACT This article adopts the theoretical lens of the English School of International Relations (IR) to outline a new Arctic research agenda. In contrast to the more mechanistic approaches used in North American IR, the English School draws from a wider range of scholarship including historical, legal, philosophical, and sociological thinking about international relations, especially around the concepts of ‘international system,’ ‘international society,’ and ‘world society.’ The article introduces the key concepts and debates within the English School, contemplates how insights from the Arctic could advance the development of the English School theory, and demonstrates how a rigorous application of the English School concepts could contribute to a better understanding of international relations in the Arctic.

Indonesian Integral Law Based on Pancasila

This study aims to explain the integral legal thinking which is constructed based on the values of Pancasila. In this study using a literature study research method with a philosophical approach. The data in the research such as; books, journals, articles and various scientific works are collected through library research. The data analysis technique used descriptive, hermeneutic and heuristic analysis. The results of the research show that it is important to make Pancasila an integral legal thinking in Indonesia, because of the strategic position of Pancasila in the life of the nation and legal issues that urgently need reform in accordance with the norms that live and develop in society as reflected in the values of Pancasila. Good law is law that is excavated from authentic sources, namely laws that apply in the real life of everyday people, not foreign laws that are imposed as a result of the colonial legacy. The integral legal thinking of Pancasila is a way of thinking, acting and acting legally based on the values of divinity, humanity, Indonesian unity, deliberation and social justice for all Indonesian people.

LEGAL CULTURE: CONCEPT, ESSENCE AND MODERN DEVELOPMENT TRENDS

The article explores the modern understanding and essential characteristics of legal culture, which reflects the extent and nature of its development. The relevance of the research topic is due to the needs of forming a high level of legal culture of the population and fostering respect for the rule of law as the most important components of a model of legitimate social behavior necessary for the successful implementation of the tasks of socio-economic development of society and the state in modern realities. The purpose of the study is to identify possible directions for improving and increasing legal culture based on the analysis of scientific approaches to understanding legal culture, as well as existing regulatory legal acts in this area. The methodological basis of the research is represented by a complex of general scientific and private scientific research methods: dialectical method, methods of analysis and synthesis, formal legal, comparative legal and other methods of scientific cognition. The paper analyzes the concept and essence of legal culture, its constituent elements, the state of legal culture, considers approaches to the formation, improvement and development of legal culture at the present stage. Ensuring the rule of law in the law-making and law-realization spheres, formation of appropriate legal thinking, improvement of legislation, legal practice, creation of conditions and motivations for improving legal behavior, introduction of digital technologies into the field of legal education and legal assistance are defined as the main directions for increasing the level of legal culture.