Legal Thought Research Articles

“Wohlstand, Bildung und Freiheit für Alle.” The Idea of Human Rights in the View of Gustav Struve as an Example of Radical German Political and Legal Thought during the Springtime of Nations

The Springtime of Nations in Germany is mostly associated with the views of various moderate liberals who played leading roles during these revolutionary events. The case is different when it comes to the members of the most radical wing within the liberal movement, the so-called “democrats.” Their ideas are described far less frequently. The article presented analyzes the idea of human rights in the view of Gustav Struve – one of the most important figures in the German democratic movement. During the German Springtime of Nations, the notion of human rights was one of the most frequently discussed but also variably understood problems. G. Struve’s views regarding this question refer not only to the idea of human rights, they also form a kind of political manifesto including solutions for various problems encountered by average citizens along with suggestions concerning an equitable structure of the social order. These postulates were revolutionary and radical but often incoherent. Thus, they fit well into the characteristics of the whole German democratic movement in the first half of the 19th century, which was seen as an unpopular, unsystematic, eclectic and immature phenomenon. The article first describes G. Struve’s life in the context of various events of the German Springtime of Nations. Subsequently, it analyzes the notion of the human being, his functioning in the social community and the definition of his rights. The article ends with an analysis of the material content of the concept of human rights in the view of the described German radical.

LEGAL THOUGHTS ON FOOD SAFETY

LEGAL THOUGHTS ON FOOD SAFETY

The “Pure” Doctrines of Law: Their Diversity in the History of Legal Thought and Their Influence on the Nature of Modern Legal Science

The article highlights the problem of the diversity of “pure” doctrines of law in the history of legal thought, their main semantic and substantive characteristics. It is demonstrated that the very fact of the diversity of “pure” legal doctrines and their heterogeneity creates the impression of the vulnerability of jurisprudence as a science, its inability to independent thinking and critical introspection, despite all the pathos of searching for its own character of legal science. Contrary to the popular idea of the leading role of the Austrian lawyer G. Kelsen in the formation of the modern image of the theory of law, in the history of legal thought there are many “pure doctrines of law”, justifications of “pure law”, requirements of “purity” of legal knowledge. The “Pure Doctrine of Law” by G. Kelsen represents only a small milestone in the development of “pure” doctrines of law. The idea of the self-sufficiency of legal science, the need for a much more complete account of its semantic components, its character as a science of culture does not at all mean justifying the exclusive role of empirical knowledge. This is the same extreme. At present, there are all prerequisites for the development of the science of law on a much broader and meaningful cultural basis. The purpose of the research is to generalize existing knowledge about the problem of " pure" legal knowledge in the history of legal thought, to clarify the place and nature of “pure” legal doctrines and their influence on modern legal science, as well as to substantiate the limitations of the requirement of “purity” as a condition for the development of modern theory of law and the corresponding concept of jurisprudence. The research is based on the use of structural analysis of legal doctrines, dialectical approach, comparison, methods of linguistic and historical-literary study of texts. The results and conclusions presented in the article can serve primarily as a significant clarification of the content, continuity and new aspects of the development of modern legal thought, the formulation of updated tasks for improving the theory of law.

Four Schools of Feminist Legal Thoughts

Four Schools of Feminist Legal Thoughts

Legal Thoughts of Personal Financial Information Security in the Digital Economy

Legal Thoughts of Personal Financial Information Security in the Digital Economy

„Wohlstand, Bildung und Freiheit für Alle”. Idea praw człowieka w poglądach Gustava Struvego jako przykład radykalnej demokratycznej niemieckiej myśli polityczno-prawnej doby Wiosny Ludów

„Wohlstand, Bildung und Freiheit für Alle”. The Idea of Human Rights in the Views of Gustav Struve as an Example of Radical German Political and Legal Thought during the Springtime of Nations The Springtime of Nations in Germany is mostly associated with the views of various moderate liber- als, who played leading roles during these revolutionary events. The case is different when it comes to the members of the most radical wing within the liberal movement, the so called “democrats”. Their ideas are described far less frequently. The article presented analyzes the idea of human rights in the views of Gustav Struve – one of the most important figures in the German democratic movement. During the German Springtime of Nations, the notion of human rights was one of the most frequently discussed but also variably understood problems. Struve’s views regarding this question refer not only to the idea of human rights, they also form a kind of political manifesto including solutions for various problems encountered by average citizens along with suggestions concerning an equitable structure of thesocial order. These postulates were revolutionary and radical, but often incoherent. Hence they fit well into the characteristics of the whole German democratic movement in the first half of the 19th century, which was seen as an unpopular, unsystematic, eclectic, and immature phenomenon. The ar- ticle first describes Struve’s life in the context of various events of the German Springtime of Nations. Subsequently, it analyzes the notion of the human being, his functioning in the social community, and the definition of his rights. The article ends with an analysis of the material content of the concept of human rights in the views of the described German radical.

Ius Gentium and <i>Ius Naturale</i> in Western European Political and Legal Thought in the 17th Century

The paper is devoted to the problem of the correlation of the legal categories ius gentium and ius naturale in the context of the political and the Western European legal thought in the 17th century. The 17th century, rich in historical events, known in the Russian historiography as the «rebellious age», becomes a turning point not only in the history of the entire European civilization, but also in the history of philosophical thought and political science, at the intersection of which the teachings of the state and law were formed. The 17th century — the time of the systemic crisis of the feudal socio-economic formation and the traditional religious ideology strongly associated with it — gives impetus to the development of capitalist economic relations in Western Europe, which was accompanied by a sharp increase in novelty in the field of philosophical and political thought. In the 17th century, prominent European political thinkers paid quite a lot of attention to the theoretical coverage of the problems of the natural state, the social contract, as well as the analysis of the categories of freedom and justice. There was a gradual departure from the methodology of peripatetism, accompanied by a revision of the intellectual heritage of ancient political and legal thought, although at the same time European political thinkers and jurists continued to widely use the terminology of classical Roman law, but in a modified semantic field. One of the most important areas of application of the ancient legal heritage is the field of international relations, closely related to the further intensification of international commerce, religious reformation, as well as the legal mechanism for declaring war and concluding peace. In the regulation of international relations, they actively used legal systems, well known from Antiquity, but greatly transformed by Modern times, and which, according to a long-established tradition, were called ius gentium and ius naturale. Thus, the paper highlights a rather ambiguous problem of the correlation of ius gentium and ius naturale in Western European political and legal thought in the 17th century.

Challenging the Rule of Law Universalism: Why Marxist Legal Thought Still Matters

The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law.

Exploring Metaphorical Representations of Law and Order in China’s Government Work Reports: A Corpus-based Diachronic Analysis of Legal Metaphors

ABSTRACT The present study has conducted a diachronic analysis of law and order metaphors in a self-compiled corpus of China’s Government Work Reports (CGWR) over a span of 22 years (2000–2021). By mapping target domains with source domains, we categorized four major types of legal metaphors, including building, physical object, journey, and living being, among which physical object was overwhelmingly predominant. Our analysis suggests metaphorical expressions that highlight physicality more than specificity will constantly remain in use because the stability and universality of such metaphors are conducive to the dissemination and reinforcement of legal thoughts. Additionally, there is a direct correlation between legal metaphors and the government’s economic, political, and social concerns, as evidenced by increasing attention paid to various security issues and new challenges in China. Given that the rule of law with Chinese characteristics becomes more institutionally recognized and systematically theorized, legal metaphors are implemented in a top-down manner to justify the exercise of power in CGWRs, making Chinese people identified with the governing philosophy and further contributing to the ideological construction of discourse. This study is thus conducive to a general but insightful understanding of how political stances are embodied and reinforced persuasively in discourse.

Hungarian Legal Ethnography from the Perspective of Theoretical Legal Thought

Abstract The object of folk law research are the customs that prevail in areas covered, or theoretically covered, by state law, which effectively ensure permanent respect for them, largely in a less formalized way. In the respective historical stratum, (folk) legal customs fulfil functions equivalent to the law where, due to the logic of historical development or for other specific reasons, (a) there is a lack of state and legal organization; (b) the state and legal organization fails to reach significant social groups due to its paucity and indifference; or (c) the law fails to be transformed into practice that would lead to the fulfillment of its true functions. In its present-day version, a legal (folk) custom emerges when the state and legal organization has wholly fulfilled the functions in question, and it survives merely within the framework and vestiges of that organization, as a component of the ongoing system of customs, as a complement and embellishment to the state and legal organization, and perhaps with content of only symbolic significance. Against a background of a living peasant society, this was, and to some extent remains, a peculiarity of Central Europe, while in other contexts, starting from different traditions, the related research comes under the domain of legal anthropology, legal ethnology, and legal pluralism. Legal ethnography contributes to the investigation of social ethnographic issues by examining the instruments and institutions of the social order and the way they function. However, in terms of jurisprudence it is simultaneously both strong and weak, since although the idea of living law has revolutionized legal thought, European legal mentality, which rests on the rule-based objectification of modern formal law, nevertheless seeks to reject both the openness that characterizes the primordial quest for peace and the formlessness familiar to peoples living close to nature. In any case, an ethnography with social-theoretical foundations, which would take into account not only legal anthropology but also the socio-ethnographic lessons of legal ethnography, remains a task for the future.

David M. Lantigua, Infidels and Empires in a New World Order: Early Modern Spanish Contributions to International Legal Thought

David M. Lantigua, Infidels and Empires in a New World Order: Early Modern Spanish Contributions to International Legal Thought

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.

Vertragstypenzwang im Code civil? Die Gültigkeit gegenseitiger Verträge in der Judikatur der Freien Stadt Krakau (1815–1846)

Abstract Contract-nominalism in the Code civil? The validity of bilateral agreements in the judicature of the courts of the Free City of Krakow (1815–1846). The courts of the Free City of Kraków, when applying Article 1325 of the Code civil, adopted a different direction from the courts in Baden or the French judiciary, both of which modified its strict content. In addition to the differences between the Polish, German and French judicatures, there were inconsistencies between individual judgements relating to the form of bilateral agreements in all three cases. As a result, the citizens of the Free City of Kraków, the Grand Duchy of Baden, or France, had no sufficient certainty as to whether their contracts would be adequately protected in the event of a dispute between the parties. The analyzed cases show a convergence of the jurisprudence of the Baden and French courts, which presented a bolder approach to the issue of the validity of bilateral agreements, thereby protecting the Code Civil principle of the freedom of contracts. Kraków courts refrained from such a creative interpretation of the article 1325 and based their rulings on its literal wording. This was partly due to the fact that Polish scholars and judges did not have easy access to the achievements of French jurisprudence at that time. The courts of Baden adjudicated in more favourable conditions, because French and German legal thoughts on the implementation of Code Civil intertwined and complemented each other.

MEMAHAMI FATWA MAJELIS ULAMA INDONESIA TENTANG PEMANFAATAN ZAKAT, INFAK, DAN SHADAQAH UNTUK KORBAN COVID-19 DALAM PENDEKATAN HUKUM ISLAM KONTEMPORER

Economic problems as a result of the Covid-19 pandemic in Indonesia have prompted serious handling by all elements of society, especially the government. Responding to this problem, the Indonesian Ulema Council (MUI) was present through the MUI fatwa No. 23 of 2020 concerning the Utilization of Zakat, Infaq, and Sadaqah Assets to cope with the pandemic and its implications. This study intends to identify the model of the contemporary Islamic legal approach used in the formulation of the fatwa. This literature study uses a philosophical normative approach. The theory that becomes the theory of analysis is the Islamic legal system approach offered by Jasser Auda. This study shows the formulation of the MUI fatwa No.23 of 2020 using an integrative Islamic law approach. This is based on the characteristics contained in the various elements in the formulation of the fatwa. First, the comprehensive and multidimensional character, namely using various textual arguments that are universal ('aam). Second, the character of intent, namely using the arguments of various rules of Islamic law that focus on benefit. Third, the cognitive character, which uses various classical Islamic legal thoughts, but does not become an independent argument, but is combined with other perspectives that are part of the basis for formulating a fatwa.

The Polemic of Pig Kidney Xenotransplantation for Human Life Sustainability:

End-stage renal disease (ESRD) cases continue to increase. However, the increase in cases of ESRD is not matched by the supply of kidneys as a condition for being able to perform a kidney transplant. Although this is not the only way to treat this case, it is only with a kidney transplant that the patient can truly recover. New York University Langone's success in xenotransplantation procedure using a genetically engineered pig kidney has become a new polemic in Islamic law issues. According to Islamic law, a pig has forbidden legal status (haram). This article analyzes the practice of xenotransplantation of pig kidneys in the human body using the concept of “Halal-haram” by Yusuf al-Qaradawi and “Maslahah” by Harun Sencal & Mehmet Asutay. This study is a qualitative method using a library research approach. This study found that it is permissible to do prohibited things during an emergency (daruriyat). In addition, in the realm of maslahah, hajiyat cannot beat daruriyat. Finally, summing up from these two Islamic scholars’ thoughts indicates that pig kidney xenotransplantation is prohibited as long as other alternatives to treat ERSD patients are available. Some options might be taken, such as hemodialysis and blood filtration (CAPD); therefore, it cannot be considered an emergency.
 Keywords: Pig kidney xenotransplantation, Islamic legal thoughts, halal-haram concept, principle of mashlahah

Rethinking the School of Salamanca - Reviewed: The School of Salamanca: A Case of Global Knowledge Production. Edited by Thomas Duve, José Luis Egío, and Christiane Birr. Leiden: Brill, 2021. Pp. 430. $172.00 (cloth); Open Access (digital). ISBN: 9789004449732. - ¿Qué es la Escuela de Salamanca? [What is the School of Salamanca?] Edited by Simona Langella and Rafael Ramis-Barceló. Madrid,

AbstractThe history and influence of the School of Salamanca is attracting the attention of researchers from very different branches of knowledge and from a very wide variety of countries around the world. Broaching this subject invites one to reflect on both the unity of knowledge and the important role that theology plays in a secularized world. In this short essay, I discuss four recently published works that show the global scope of interest in Spanish Scholasticism in general and the School of Salamanca in particular. The first, The School of Salamanca: A Case of Global Knowledge, was edited by Thomas Duve, Jose Luis Egío, and Christiane Birr in coordination of the Max Planck Institute (2021). The second work, ¿Qué es la Escuela de Salamanca?, was edited by Simona Langella and Rafael Ramis-Barceló (2021). The third work is a recent thematic compendium on Spanish Scholasticism edited by Harald E. Braun, Erik De Bom, and Paolo Astorri (2022). Finally, I discuss David Lantigua’s monograph, Infidels and Empires in a New World Order: Early Modern Spanish Contributions to International Legal Thought (2020).

Ancient Chinese Political and Legal Thought about Rewards and Punishments

The article discusses ancient Chinese political and legal thought. In the modern world, such political and legal teachings as Confucianism, Taoism and Legalism have gained wide spread and influence. They occupy a special place in the spiritual culture of China and the life of modern Chinese society.
 The PRC is at the stage of further modernization of Chinese society, which was initiated by the reforms of the 1970s. Traditional for China in any era of its development has been the appeal to the achievements of Chinese civilization.
 One of the problems considered by the representatives of ancient Chinese political and legal thought is the problem of state administration. Among the various methods of government, ancient Chinese thinkers singled out, first of all, rewards and punishments. Within the framework of the political and legal views of ancient China, there were several approaches to rewards and punishments. The Confucians opposed the administration of the state on the basis of laws containing severe punishments. They believed that government should be based not on punishments, but on rewards. Supporters of Taoism recognized the method of rewards and punishments in government, but treated it negatively. In Mohism, ideas are expressed about the need to combine violent methods of control with moral forms of influence on people. Legalists come to the unequivocal conclusion that punishments are the most effective method of governing society.
 The article concludes that the system of severe punishments developed by the Legalists underwent changes in the direction of mitigation and connection with the main postulates of Confucianism during the Han Empire. A system of severe punishments, coercion and violence, in a somewhat relaxed version, became the basis for the work of government bodies in subsequent centuries of Chinese history.

The Ayn-Dayn Distinction in Ḥanafī Legal Thought and Its Effect on Legal Arrangements -The Example of Labor Contract and Contract of Construction -

Hanefî hukuk düşüncesinde ayn-deyn ayrımı, akitlerin meşruiyet koşul-larından tazmin yükümlülüğüne ilişkin ilkelere kadar, borçlar hukukuyla ilgili birçok düzenlemeyi şekillendirmektedir. Bu ayrımın şekillendirici işlevi-nin kavranabilmesi bakımından üç husus öne çıkmaktadır. Onlardan ilki, ayn ve deynin Hanefî hukuk terminolojisindeki kavramsal içeriklerinin ne olduğu; ikincisi, malların nitelikleri ile ayn ve deyn arasında ne tür bir ilişki bulunduğu; üçüncüsü de hukukî düzenlemelere etkileri bakımından ayn ile deyn arasında ne tür mahiyet farklılıklarının bulunduğudur. Hanefî hukuk terminolojisine göre bir borç ilişkisinde deyn, tayinle taayyüne elverişli olmayan mallar (altın, gümüş ve para) bakımından, borçlunun elinde mevcut olsun veya olmasın, henüz alacaklıya teslimi gerçekleşmemiş malı; hâlihazırda mevcut olmayan mislî mallar bakımından, borçlunun zimmetinde bulunan mislî malı; mevcut mislî mallar bakımından, küme hâlde mevcut fakat henüz ferden taayyün etmemiş mislî malı ifade etmektedir. Zimmette bulunmaya elverişli olmamaları sebebiyle kıyemî mallar, deyn olmaya elverişli değildir. Ayn, kıyemî ve mevcut mislî mallar bakımından, mevcut ve ferden muayyen hâle getirilmiş malı; altın, gümüş ve para ile ilk baştan borçlunun zimmetinde deyn olarak bulunan mislî mallar bakımından, alacaklısı tarafından kabzedilmiş malı ifade etmektedir. Ayn ile deyn arasındaki mahiyet farklılıklarından öne çıkanı, helak ve zarar olgularının ayn bakımından tasavvur edilebiliyor olmasına karşılık deyn bakımından edilemiyor oluşudur. Kimi hukukî düzenlemeler bakımından kusursuz sorumluluk ile deyn ve kusur sorumluluğu ile ayn arasında ilişki kurulması bu durumun bir sonucudur. Bunun dışında, ayndan farklı olarak deynin ancak kabz yoluyla taayyün edebiliyor olması ve te’cîl ile tahvîl olgularının deyne özgü olup ayn bakımından söz konusu edilememesi, ayn ile deyn arasında öne çıkan diğer mahiyet farklılıklarıdır.

Indonesian Religious Court Decisions on Child Custody Cases: Between Positivism and Progressive Legal Thought

Indonesian judges of Religious Court in deciding child custody cases have different legal reasoning. Some preferred to use juridical reasoning and others use progressive and sociological reasoning. This different legal reasoning causes various insights in the meaning of justice for child custody. This study aims to analyze the positivistic and progressive Islamic legal thought in judges' decisions of child custody cases. This is normative legal research with statutory and case approaches. The legal material is six judges' decisions and is supported by books, scientific article, statutes, and interview. Then, it is analyzed by content analysis. The result states that judges who use textual reasoning tend to decide that child custody is the mothers right, referring textually to an article 105 of the Islamic Law Compilation. Meanwhile, the other judges who prefer to contextual reasoning, decide that child custody is the fathers right. The textual reasoning is steered by legal-positivism: logical coherence of the text is the main method in concluding decision. The contextual reasoning is driven by sociological as well as critical-progressive thought: deconstruction of legal text, contra legem approach by qiyâs (analogy) and istiḥsân (legal teleology), to produce the justice values based on child interests and parents conditions.

Sovereignty, Reason, and Will: Carl Schmitt and Hasidic Legal Thought

AbstractThe decisionistic strand in Jewish legal philosophy is often neglected by scholars focused on the more common rational explanations for Jewish law. This article brings attention to decisionism in Jewish legal thought by analyzing the legal philosophy of Shneur Zalman of Lyady, the founder of the Habad Hasidic movement. The author uses the legal and political thought of Carl Schmitt—arguably modernity’s most influential decisionist—to help elucidate Shneur Zalman’s decisionistic legal thought and thereby put into sharper focus an otherwise underappreciated current in Jewish legal philosophy.