Philosophy Of Law Research Articles

Law, War And Peace: are the Laws Silent During the War?

The research paper is devoted to understanding the way of existence of law during the war. This is done by referring to theoretical and methodological foundations of philosophical thought: legal positivism, ideas of natural law and the sociological school of law. At the same time, these approaches are considered on the basis of the latest philosophical and legal studies. Based on the views of E. Bulygin, R. Alexy and other outstanding representatives of modern legal thought, the author examines the classical ways of the existence of law: normative legal act, the idea of law, custom, and comes to the conclusion that law can’t exist in the named modes. Therefore, there is an objective need to rethink the mentioned problem in the coordinates of non-classical philosophy of law, first of all, legal phenomenology. One of the most successful phenomenological strategies is phenomenological reduction. The essence of such operation is to reduce all random empirical properties of the object in order to reveal its essence. In contrast to the traditional conceptual analysis, the reduction of the classical forms of the existence of law results in a “remainder” of law in the form of a person’s bodily existence, which sets a limit to the actions of other people. This limit is specified with the help of three factors: locality, modality and subjectivity. Locality means that the corporeality of a person under conditions of war embodies the rule of law not anywhere, but only in a certain territory. In turn, modality as a factor in the existence of law during the war indicates that human corporeality as a mode of existence of law can be violated only in certain ways. The third of the mentioned features, subjectivity, means that corporeality is the embodiment of the norm of the law only in relation to certain subjects (e.g., non-combatants). Thus, human corporeality becomes a living embodiment of law and in this capacity replaces the classical norm contained in a normative legal act or precedent, a subjective or objective idea of law, as well as legal custom as a traditionally formed template of social relations. Therefore, it should be concluded that under the conditions of war, the law can exist only in the form of the living bodily presence of a person, and the experience of law from the sphere of ideas and norms moves to the plane of corporeality, when the offense is initially interpreted not as a violation of a natural or positive norm, but as causing bodily harm to a person. This, in turn, allows us to create a more realistic picture of functioning of the law during military operations, when instead of a static and uniform legal field that is constantly violated, we are dealing with a heterogeneous

Historia relacji Kościół–państwo w kościelnym prawie publicznym. Ukształtowanie się jurysdykcjonizmu

The relationship between the state and the Church is very rich in content. In various centuries, different models have been formed. The evangelization that has taken place in this area is an stretch of many scientific studies. Presentation of these conditions in the light of the historical circumstances was intended to encourage many to take an interest in this subject. Researchers are encouraged to present elements that may represent new research horizons. A reader of events in the state-church relationship has the right to express his views and to seek answers within the framework of Church law. The publication included the thoughts of many famous lawyers, canonists and philosophers of law and theorists. The relationship between the state and the Church has been reflected in the history of concluding international agreements called the Concordat.

The philosophy of international law of Modern Scholasticism: the theory of just war

This article analyzes the philosophy of international law of the Second, or Modern Scholasticism. The author of the article concentrates on the just war theory mainly developed by Francisco de Vitoria and Francisco Suarez. The objectives of the article are to clarify and classify the main principles of the above-mentioned theory as well as to grasp its relevance nowadays. In order to achieve these objectives doxographical, analytical as well as hermeneutical methods are applied. Based on them, the principles and rules of just war are divided into two fundamental types. The article comes to conclusion that these types correspond to the parts of contemporary just war theory entitled as jus ad bellum and jus in bello. Another significant conclusion is that the vast majority of the principles of just war presented in Modern Scholasticism (e.g. just cause of the war, adversary’s warning of intended offensive actions, the inviolability of ambassadors and peaceful population, prohibition on killing prisoners of war and hostages, the compliance of reparations with the damage caused before and during the war, the illegality of religious and confessional wars) are also relevant nowadays.

Eigentum und Metapher: Überlegungen zu Franz Kafkas „Der Bau“

Abstract Franz Kafka’s “Der Bau” is, among others, a story about dwelling and real estate. This essay makes visible how Kafka’s late fragment considers aspects of law, narration, and metaphor in order to establish a (bourgeois) form of property. The character of this proprietary order is explored in the text. Particularly the often-neglected framework of property that Kafka assigns to the burrow and its monologuing resident reveals a connection to a well-known problem in Kafka’s literature, namely the problem of the institution. The reading of Kafka’s “Der Bau” therefore becomes – also in dialogue with aspects of Kant’s philosophy of law – a categorical contribution to the (metaphorical) institution of property itself.

PHILOSOPHY OF LAW AS A PRACTICAL EXPRESSION OF SOCIAL IDEALS

Background. Philosophy of law is a branch of philosophy that studies the nature of law, especially in its relation to human values, relationships, and practice. The points of views to the nature of law often depend on the philosophical position taken by a particular philosopher or group of philosophers. As a result, legal philosophy becomes the object of heated discussions, the main feature of which is reduced to the question of what is due and being, i.e. can and should positivist law replace the traditional values developed by mankind as regulators of behavior and relationships.
 Purpose. The purpose of the article is to determine the relationship between the philosophy of law as a “special” or “private” discipline and “general” philosophy. The subject of the study is the philosophical ideas of a rational approach to law as a practice.
 Methods. The research method is the analysis of scientific literature and philosophical reflection.
 Conclusions. In the philosophy of law the decisive factor is not so much its attitude to general philosophy, but the relationship between the philosophy of law and the law itself.
 Results. The effectiveness of the work done lies in the fact that the findings allow us to consider the philosophy of law as a practical philosophy. The results obtained can be used in further practical and theoretical studies of philosophy and theory of law.

(하버마스와 드워킨으로) ‘나라다움’의 개념 만들기

The purpose of this paper is to conceptualize sustainable development state model by building a ‘state-likeness’ concept. Habermas insists that a state’s legal system is problem of making a right political regime. For him, the state-like concept for sustainable state model comes from legal system’s design and institutionalization. By contrast, Dworkin’s legal system problem is a key whether political community’s function operates smoothly. As being a composition of legitimacy criteria and integrity criteria, the complementary co-attribute principle in a state standard model of state-likeness is inherent in two law philosopher’s concepts with conceiving as law philosophy. Korean ‘state-likeness’ criteria is safety, justice, liberty, happiness. In compliance with criteria, we must constitute and operate a legal system, judge and citizen together fulfill one’s responsibility.

The language of legal populism – a philosophical and legal perspective

Populism researchers draw attention to the vital role of language in the implementation of Popularist agenda. This role is discernible in propaganda practices, in attempts to redefine pre-existing notions, and in changing social – but also – linguistic conventions. The recent wave of populism (2010–2021) touches upon law and the rule of law in a special way, and thus phenomena such as propaganda, redefinition of notions and change of convention are often implemented in the field of the language of law. This elaboration is an attempt to analyse the mechanism of changes in the linguistic conventions governing the language of the law and legal language caused by populism, while the tool for this analysis is the philosophy of law applying the achievements of the philosophy of language. Using the concepts and theories proposed by E. Laclau, N. Lacey, R.G. Millikan and F. Recanati, in this study, I explain what the change of legal culture – being conducted by populists – is, defined as a set of linguistic and behavioural conventions relevant to the law. The predominant thesis of the research paper in this area is the claim that the populist change of legal culture consists in turning concepts that are vital for law into empty or constantly floating signifiers, and in destroying legal conventions by 1) ceasing to reproduce behaviours that have so far constituted linguistic and behavioural conventions in the field of law, or 2) initiating the reproduction of new behaviours. In both cases, the modification of the convention entails the loss of their ability to perform functions that are appropriate within the meaning of R.G. Millikan, and thus causes a decline or loss of social usefulness. The analysis carried out enables to draw conclusions as to how the populist change of legal culture can be counteracted.

Pedagogical Aspects of the Protection of Human Rights in the Context of the Philosophy of Education and Law

The main goal of the study is to determine the main pedagogical aspects of the protection of human rights in the context of the philosophy of education and law. The philosophy of human rights, in the context of the philosophy of education and the philosophy of law, is an integral part of philosophical anthropology, the most important task of which is to study the nature of humans, which serves as the source of his inalienable rights and freedoms. The main aspects of the study are the issues of phenomenology and ontology, revealing human rights as its attributive property, which is formed in the context of social life. An important aspect of this issue is the study of the pedagogical aspects of the human rights protection system in the context of the philosophy of education and law. A detailed study of the foundations of the protection of human rights and their philosophical essence serves as a powerful basis for the formation of a modern democratic society. As a result of the study, the main aspects of the essence of human rights in the context of the philosophy of education and law were identified.

Review of the monograph “The Idea of Good in F. М. Dostoevsky’s Work and Its Influence on the Development of the Philosophy of Law (To the 200th anniversary of F. М. Dostoevsky)”

The collective monograph “Тhе Idea of Good in F. М. Dostoevsky’s Work and Its Influence on тhе Development of the Philosophy of Law (To the 200th anniversary of F. М. Dostoevsky)” has become a significant event in the world of world science that studies issues of international law.Within the framework of this book, great attention is paid to the opposition of the multivector forces of “Good — Evil” in relation to the Russian Federation through the work of F. M. Dostoevsky. Now, on the western borders of the Russian Federation, the actions of a number of western unfriendly states that are members of the NATO military bloc have intensified, which, from the point of view of F. M. Dostoevsky abandoned God and bring evil, vices and death to the whole world. At the same time, the Russian Federation faced an ideological vacuum after the fall of the USSR and the rejection of socialist ideals. The authors show that Russia can offer the world a new civilizational ideology of Good within which there will be a spiritual transformation and liberation of mankind from temptations, strengthening of faith in God, the establishment of Christian love and virtue. The development of the ideology of Good is becoming the historical mission of Russia in the 21st century.

Review Of The Sharia Maqashid On Provisions Of The Midwife Professional Self Practice

Midwife is a profession obtained by someone who has completed midwifery education and is officially recognized, and has the competence to carry out practice. Midwifery Law number 4 of 2019, philosophically aims to provide goodness to midwives and the community. This study aims to explain the provisions of independent practice for midwives using the maqashid shari'ah review. The maqashid shari'ah itself is one of the methods contained in the philosophy of Islamic law. Therefore, the data used is in the form of literature, in the form of Law Number 4 of 2019 concerning Midwifery, as well as supporting library references. Based on the description of the analysis, it was found that there was a separation of practice authority between vocational midwives and professional midwives. Professional midwives can practice independently, while vocational midwives are not allowed to open independent practice. Based on the maqashid shari'ah review, the maintenance of religion, reason, soul, property, and offspring, seeks to provide protection and benefit both to clients and to midwives. The results of the study concluded that the Midwifery Law provides a separation of authority for practice aimed at providing a stimulus so that midwives increase their knowledge and abilities. The review of maqashid shari'ah provides an overview of the new midwifery law that provides benefits to clients and midwives.

THE NATIONAL IDEA OF GOODNESS AND GENERAL UNION AS A POSSIBLE OPTION OF THE STATE IDEOLOGY IN THE RUSSIAN FEDERATION

In modern conditions, no state can exist without a national idea, which determines the main directions of its development and is expressed in the state ideology. The purpose of this article is to determine the national idea underlying the Russian sovereign state law ideology, which is due to the modern policy of the leaders of the Russian state, which should be adequate to the challenges of today's global processes. Methods: the authors apply such methods as dialectical logic, description, system and structural analysis, comparison and generalization. Results: an attempt is made to substantiate the necessity of the national idea of goodness and general union. Proposals for its consideration as a possible variant of the state law ideology are formulated. It is established that the philosophy of law of F.M. Dostoevsky proceeded from the principles of human unity, humanism. The general conclusion is made about the need to consolidate the national idea and sovereign state law ideology in the legislation of the Russian Federation.

Ilmu Hukum Berparadigma Pancasila di Era Globalisasi: Sebuah Tantangan Liberalisasi Ekonomi dan Teknologi

The liberalization of economy and technology in globalization cause philosophical problem to the jurisprudence paradigm in Indonesia because of its capitalism ideology which full of capital owners interests and monopolies that harm small and medium enterprises. Meanwhile, liberalization on technology which is considered free from any ideology, is not separable from capitalism which controls technological sophistication that causes the ideological disruption of a nation (new colonialism). The purpose of this study is to analyze the relevance of Pancasila which is the philosophical bases of the jurisprudence paradigm in Indonesia when faced the globalization. To analyze this problem, this article uses normative legal research method with philosophical approach. Pancasila as the guardian of the ideology of the Indonesia state has very strategic and significant role in maintaining the philosophy of law that is constantly evolving in responding the globalization from ontology, epistemology and axiology aspects. The five precepts of Pancasila are dynamic and accommodating ideological-philosophical bases for the development of jurisprudence in facing the current challenges.

The Phenomenon of A. K. Chernenko

In continuation of the author’s project devoted to the study of the historical development of domestic legal science and practice by its representatives whose life, professional and scientific activities were somehow connected with Siberia, the general scientific community is offered a brief biography, an overview of the main ideas and original concepts of the PhD in Law, Professor, Honored Scientist of the Russian Federation, a well-known specialist in the field of social philosophy, philosophy of law, general theory of state and law A. K. Chernenko. The theoretical basis of the research was scientific articles and monographs of the scientist, reviews of his works, memoirs of colleagues, archival materials. The methodological basis of the study was historical, logical and systematic methods. Based on the conducted research, the author comes to the conclusion that it is necessary to study the extensive scientific heritage of Professor A. K. Chernenko, which has not lost its relevance to date.

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.

Marriage Guidance Towards Family Resilience in Aceh: A Study of Islamic Law Philosophy

This paper aims to examine government policies related to marriage guidance in order to establish family resilience with an Islamic legal philosophy approach. This study used a philosophical approach to Islamic law. The data were collected through literature studies and in-depth interviews. The results of the study indicate that government policy has created a marriage guidance program to increase family resilience. The implementation of marriage guidance in Aceh still faces obstacles from the formulation of the implementation model, the preparation of operational standards, methods, techniques, materials, and time allocation, as well as synergies with other related agencies. Marriage guidance is not an absolute requirement for marriage. Both the provincial Ministry of Religion and the City Regency Ministry of Religion do not periodically evaluate the marriage guidance program. The budget from the government is still minimal, and the need for cooperation between institutions causes the implementation of marriage guidance not to run optimally. However, marriage guidance from the perspective of Islamic legal philosophy aims for the benefit of prospective husband and wife, their families and communities, and even the state, therefore, this program is quite essential. Moreover, it is associated with family resilience, meaning that marriage guidance will strongly influence family resilience.

Notes on Contributors

Previous article FreeNotes on ContributorsPDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreShai Agmon is a PhD candidate in the Department of Politics and International Relations at the University of Oxford. Starting next year, he will be the Rank-Manning Junior Research Fellow at New College, University of Oxford. His research interests include institutional political philosophy, the normative limits of markets, and legal philosophy. [email protected]Pietro Cibinel is a PhD student in philosophy at Princeton University. He works on epistemology, ethics, and decision theory, with a focus on topics at the intersection of these areas. [email protected]Jonathan Gingerich is senior lecturer in philosophy of law at King’s College London and has research interests in ethics, moral psychology, aesthetics, political and legal philosophy, and existentialism. He is currently writing a book about spontaneity. [email protected]Samuel Lee recently completed his PhD at New York University and is currently a postdoctoral research fellow at Linköping University. His main areas of research are metaphysics and the philosophy of science, where he focuses on causation, grounding, intervention, and probability. Further research interests are in ethics and the philosophy of action, where he pays particular attention to free will and moral responsibility and the role of consequence in moral philosophy.Andy Mueller is currently a postdoctoral researcher at Goethe University. His book Beings of Thought and Action: Epistemic and Practical Rationality (2021) investigates epistemic norms for practical reasoning and pragmatic encroachment in epistemology. Most recently he has had articles published in Analysis, Episteme, and Synthese. [email protected]Liam Shields is a senior lecturer in political theory at the University of Manchester. His research interests include distributive justice, particularly sufficientarianism; equality of opportunity in education; and the distribution of child-rearing rights. He is currently writing a monograph, provisionally entitled The Ethics of Child-Rearing Relationships, that argues for an account of justice in the distribution of child-rearing rights that accommodates the interests of those other than the parents and the child, such as grandparents. [email protected] Previous article DetailsFiguresReferencesCited by Ethics Volume 133, Number 1October 2022 Article DOIhttps://doi.org/10.1086/720785 Views: 394Total views on this site © 2022 The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Philosophical and Legal Heritage of V.S. Nersesyants

The article analyzes the legal views of one of the most interesting and original philosophers of law of the last quarter of the twentieth century - the beginning of the XXI century, Academician of the Russian Academy of Sciences V.S. Nersesyants. The origins of his legal ideas are in ancient philosophy and German idealistic philosophy. Therefore, the comparison of his legal views with the ideas of the Hegelian philosophy of law, taking into account both dissertations of V.S. Nersesyants, is quite traditional for connoisseurs of the theory of law of our contemporary. However, as the experience of a more detailed and in-depth analysis shows, interesting points of similarity of his ideas are also connected with other representatives of the German intellectual and philosophical culture of thinking about law. It is the understanding of the nature of the successive and new aspects in the system of legal views of V.S. Nersesyants that can serve as the basis for the development of his legal views in modern topical and prospective studies. The scientific novelty of the conducted research of V.S. Nersesyants's philosophical and legal heritage consists in some significant clarifications of the nature of the ideas expressed by him, clarifying their connection with the ideas of not only Hegelian philosophy, but also the teachings of I. Kant, I. Fichte, G. Mehmel, as well as the later ideas of the neo-Kantian lawyer R. Stammler. At the same time, the comparison of the legal views of V.S. Nersesyants and the interpretation of law in G. Mehmel's "Pure Doctrine of Law" allows us to present the theory of law of V.S. Nersesyants as an original version of this doctrine. The article also points to the inexplicability of the concept of justice in the philosophy of law of V.S. Nersesyants, as well as promising studies of social theory as a prerequisite for the socio-practical doctrine of civilization.

Professor Guram Natchkebia as a Criminal Law Philosophy Problems Researcher (According to the Works Published in “Philosophical Investigations” Collection)

This work covers the philosophical analysis of research of criminal law problems according to the works published in “Philosophical Quests” Collection of the Academy of Philosophic Sciences of Georgia by one of the modern prominent representatives of Georgian jurisprudence, Professor Guram Natchebia. Namely, it covers the philosophical problems of crime as deny of law, its concept-forming categories, deliberate crime as the idea and basis of value error and criminal relations, boundary categories of guilt and axiological aspects of law. Special attention is paid to attitude to criminal responsibility, as any concrete obligation, not person’s obligation, what allows foundation of positive responsibility idea; analysis of guilt and irresponsibility as the synonymic notions, presentation of the basic categories of general theory of law: “composition of act” and “illegality” and the social philosophy category of “guilt”; consideration of guilt as phenomenon on the boundary of psychic and normative and its boundary categories (responsibility with its positive and negative aspects; freedom; cause and effect; quantitative and qualitative; legal relations; moral; sense of responsibility; conscience); Taking of the categories of “illegality of action” and person’s “guilt” out of the descriptive consideration structure for foundation of the normative notion of guilt and their announcement as evaluative, axiological categories, as opposed to the category of “composition of act”, as a gnoseological category. It is demonstrated that Professor Guram Natchkebia’s works cover both general principles of philosophy of law and philosophic matters of the general categories of law. Contribution of Professor Guram Natchkebia to development of Georgian legal philosophy in general and namely, of the Georgian criminal law philosophy is assessed.

Analysis of a System Approach in Islamic Law Philosophy (Jasserauda's Perspective)

Islam as a teaching can be studied from various perspectives. Both social, humanities, economic perspectives and even the legal perspective itself. This study will review Islam from a legal perspective as the main teaching of Islam. This study aims to describe JasserAuda's opinion about the purpose of the revelation of Islamic law by God seen from a systems philosophy approach. The research used in this paper is a literature review. Data were collected from various literary sources originating from JasserAuda's writings, namely The Philosophy As Islamic Law. Then the data were analyzed using content analysis. The results of this study indicate that the systems approach is carried out through several steps, namely: First, validating all knowledge. Second, using holistic principles. Third, courage is open and reforming. Fourth, determine the priority scale based on existing social conditions and not from the verbality of the text. Fifth, the multi-dimensional approach combined with the maqasid approach as a solution to the conflicting dilemma of two propositions. Sixth, taking maqasid as the determination of Islamic law.

Philosophy of Criminal Law and the Implications of Ransom Payment on Criminality in Nigeria

Philosophy of Criminal Law and the Implications of Ransom Payment on Criminality in Nigeria