Spirit Of Law Research Articles

Anthology of Administrative Discretion

The article analyzes scientific works that had a significant influence on the genesis and evolution of the theory of administrative discretion: “The Spirit of Law” by Charles Montesquieu (1748), “Introduction to the Study of the Law of the Constitution” by Albert Dicey (1885) and “Public Administration and the Public Interest” by E. Pendleton Herring (1936). It is shown that initially administrative discretion was understood as reasonable (rational) activity of executive authorities and their officials, then administrative discretion began to be opposed to law as such, and recently it is increasingly interpreted as creative activity of the government in the framework of anticipatory discretionary regulation. Special attention is paid to the continuity and expansion of the above ideas, their development in the concepts of other researchers, including modern ones, as well as their criticism. The conclusion is made that these ideas should be taken into account in the formationof the Russian theory of administrative discretion.

Text, tone, and legal language: Analyzing mutual fund disclosure sentiment

AbstractMutual fund disclosures must include information about a fund's strategies and risks to comply with the letter of the law. But funds should also honor the spirit of Securities and Exchange Commission (SEC) regulations, including informing ordinary investors. Disclosure language creates impressions that can be just as important as the content. But evaluating these soft aspects of disclosures is hard. In this article, we propose using disclosure tone—how positive or negative the language is—to empirically capture these impressions. This measure provides an additional tool to assess compliance with the spirit of disclosure laws. Building on finance research on company disclosures, we develop customized dictionaries specific to mutual fund disclosures. We then introduce a novel sentiment‐scoring framework that generates transparent sentence‐ and disclosure‐level scores for our sample of 164,602 mutual fund summary prospectuses (497k) from 2010 to 2020. Our descriptive analysis validates our dictionary by showing meaningful and statistically significant differences across disclosure sections, fund type, and time. Funds' statements of their principal risks are more negative (and uniformly so) across time than funds' descriptions of their investment strategies. We further explore these relationships using a fixed‐effects regression model. These analyses reveal statistically significant relationships between mutual fund disclosure tone and fund attributes, performance, and disclosure characteristics. These relationships are consistent with SEC requirements that anchor risk discussions in more negative language than strategy discussions. The findings also highlight the role of legal language in setting the overall disclosure tone. Our context‐sensitive approach provides a path to regulate compliance more effectively with both the letter and the spirit of the law. Our framework, which we have made publicly available, provides a robust tool to allow researchers and regulators to assess not only what funds say, but how they say it.

Separation of Powers in Baron de Montesquieu: Philosophical Appraisal

In a democratic system, citizens of a given country vote to elect their representatives who will form a government. Fair and equal treatment is required to be provided for every citizen by the government such as fundamental rights, popular and free participation in governance and so on. However it is quite unfortunate that men, once vested with power, abuses it there by causing despair among citizens, just as it is being portrayed in most African countries. Therefore it is necessary that power becomes a check to power. Having seen the need for such check and balances in power, Baron De Montesquieu in his treatise ‘Spirit of Laws’ espoused the separation of powers among the three arms of government in a democratic setting to avoid the abuse of powers.

The Dharmasastra and Modern Law Letter and Spirit of Law in Indian Tradition

The Dharmasastra and Modern Law Letter and Spirit of Law in Indian Tradition

Editorial Introduction: Poetics of Self-construal in Postcolonial Literature

How man is made and how he makes himself was at the crux of the anthropological inquiry launched by Immanuel Kant in his 1798 Anthropology from a Pragmatic Point of View. The subsequent story of the discipline, progressively aided by others, both from the field of humanities (philosophy, sociology, psychology, ethnography) and of sciences (biology, physics, physiology, psychiatry), followed one or the other paths opened by the Königsberg philosopher. The self grounded in physiology is considered by Kant egoistic, self-centred and motivated by irrational drives: involuntary perception, subconscious associations, arbitrary taste or unaccountable desires. On the contrary, the pragmatic self is historically and culturally generated in an individual who has a motivation and a purpose in his effort to civilize himself, living in the spirit of law and morality. As values transcend the empirical self and are shared in common with peers, these constitutive states and activities of the psyche point to the existence of a common human nature which, however, changes across time and space.

Արևմուտքը՝ մեր ազգային ողբերգության համատեքստում / West in The Context of our National Tragedy

The Armenian people are deeply rooted in the Armenian Highlands and the East. They are characterized by their traditionalism, love for nature, and emotional disposition. Their culture is one of the heart, marked by empathy for others, sharing their joys, and feeling their sorrows. The man of the East does not claim to be recognized by the world or by others. That is why the genius Tumanyan, whose native element was the East, noted that we know neither ourselves, nor our neighbors... The West perceives the world exclusively with the reason. The main thing here is not the person, but the technique. Everything here is calculated based on profit. Here people do not live with other's problems. Western civilization follows a different spiritual path that relies on reason, professes different moral, ethical and cultural values that derives from rational egoism. Each of these is valuable in its own way. However, the concept of "barbarian East and civilized West", created by Herodotus and Aristotle, was further elaborated by Sh. Montesquieu's "On the Spirit of Laws" and the works of A. de Tocqueville, eventually shaping public perception. Following the invasions of Alexander and, especially, the adoption of Christianity as a national identity, our focus shifted westward, towards Europe. We, who once fought together with the East against the West, became carriers and promoters of Western values in the East. The East began to percieve us as outsiders. The West never considered us allies and did not advocate for us despite our role in spreading the Western culture and values in the East. Through numerous examples, the author attempts to justify that our loss of statehood, all our big and small tragedies stemmed from our wrong and unjustified orientation towards the West. We often overlooked the fact that the West has its own geopolitical interests, with no inclination to support the existence of a sovereign Armenia, let alone a powerful state. Unfortunately, with the same persistence, we repeat the same mistake today seeking support from the West instead of our natural allies.

Enfeoffment to Use, Legalism, and Humanism in Gower's Mirour de l'Omme

Enfeoffment to Use, Legalism, and Humanism in Gower's <i>Mirour de l'Omme</i>

Taking Montesquieu’s Advice: On Liberty

Abstract While Montesquieu’s The Spirit of Laws is recognized as one of the foundational philosophical works on the subject of liberty, much work still needs to be done to ferret out exactly what Montesquieu’s teaching is on the subject. This essay attempts to contribute to this endeavor by clarifying certain key elements of Books 11 and 12 of that book.

The Concept of ‘Oriental Despotism’ in Modern Japanese Intellectual Discourse

This article explores the historical semantic changes of the concept ‘Oriental despotism’ in modern Japan. In premodern Japanese political discourses, the term sensei (despotic rule) was already widely known among Confucian scholars via the ancient Chinese classic Zuo Zhuan. However, it was the introduction and wide circulation of Montesquieu’s De l‘esprit des lois (The Spirit of Law, 1748) in the early Meiji period that instilled in the modern Japanese language the concept Toyoteki senseishugi (Oriental despotism), a complex orientalist explanation of Asia’s authoritarian system of rules. Though first a concept that informed the Meiji authority of the civilizational hierarchy of different forms of government and warned of the need for constitutional democracy, Oriental despotism became, in the course of Japan’s growing encounters with its Asian neighbours after the First Sino-Japanese War (1894–1895), the theoretical premise of a ‘stagnant Asia’ and served as an ideological justification for Japan’s expansion in Asia. This article analyses the different perspectives, arguments, and rhetorical manoeuvres of the Japanese political and social scientists who most actively contributed to the discourse on Oriental despotism from the early Meiji period to the postwar era. It identifies four independent yet related discourses on Oriental despotism in modern Japan and argues that the influx to Japan in the 1930s and 1940s of theories on society’s modern transformation had ultimately determined how this concept would be interpreted, applied, and understood in postwar Japan.

Protection of People Living with HIV/AIDS in an Islamic country: Iran

In this paper, the most important instances of fundamental rights of People Living with HIV/AIDS (PLWHA) are explained in the spirit of laws and regulations of the Islamic Republic of Iran, as well as Islamic rules. It should be noted that according to the principle of coherence in the thought of Islamic law, these rights in front of themselves typically depict the duty of the state and society, which are required to protect and guarantee them. Merely guaranteeing citizen’s rights in the form of law, even with special legal protections, can ultimately provide the procedural rule of law for PLWHA; but the real protection of the law goes beyond this formal aspect. In practice, an Islamic government needs to make special executive arrangements to ensure that their rights are upheld so that we can touch the substantive rule of law. Therefore, this paper strives to depict an image of the fundamental rights of PLWHA in the contextual and pragmatic perspective which should not remain merely symbolic in the form of a charter framed on the wall.

Legal foundations of the life world of the Russian village: Theoretical, methodological and essential aspect

The life world of the village (rural life) is a kind of background (independent environment, substance), which structurally consists of public (group) consciousness in the form of the meanings of public (public) and personal (private) life, aimed at mutual understanding. Here, law is expressed through fundamental ideas and manifests itself as the spirit of law. The system of the village’s life world is a set of institutional socio-political structures (subsystems), including the legal subsystem. The legal subsystem is essentially the legal basis of the life world of the village (rural life), which reflects the system of positive (positive) law in force in the state, where legal norms are developed. The structural elements of the legal foundations of the life world of the Russian village (rural life) and their essential characteristics are determined on the basis of the formal-legal (dogmatic) and, in combination with it, institutional-legal and other research methods.

The importance of the formation, development and decentralization of local self-government in the reconstruction of the country

The principle of separation of powers still dates back to the Roman Empire, and then the idea was re-conceived and revised by John Locke and Charles Louis Montesquieu, which helped popularize the idea. Locke gave us his views on the necessity and importance of separation of powers in The Second Treatise on Civil Government (1690), which Montesquieu considered in the following works: The Persian Letters, The Spirit of Law, and the Causes of the Rise and Fall of Rome. “.The distribution of power in democracies is mainly based on two principles, vertically and horizontally. Vertical refers to central, regional, municipal, and district governments, while horizontal refers to legislative, executive, and judicial branches of government.Proper and effective governance is possible only in a democratic society, which also helps to increase public confidence in the system of government and increases the legitimacy of the government (citizens do not have problems with public relations). It should also be noted that the decentralization of the country itself contributed to the redistribution of power, which meant a reduction of influence and legitimate power by individual political forces. The goal of local self-government is to improve the decentralization process and achieve better governance at the local level.

Theoretical complexity and practical significance of the manifestations of the interaction of religion and law

Purpose. To prove the impossibility of the disappearance of the phenomenon of religiosity in society and the obvious facts of the influence of religion on the processes of formation and development of law. Method. The methodology includes a comprehensive analysis of many historical sources and the conclusion that religion is in fact the spiritual cradle of law. The methodological basis of the study is a system of conceptual approaches, general scientific and special legal methods, as well as methods of scientific knowledge: anthropological, idealistic, demanding research, systemic, communicative approaches, and methods such as historical-legal, comparative-legal and more. Results. In the course of the research it was substantiated that three things are necessary for initiating legal communication: knowledge of law (intellectual element), activity (volitional element), and - without a doubt - consciousness (spiritual element). After all, only the spiritual identifies the first two. Only the spiritual component fills with "legal light", content, purpose, spirit of law, legal connection, guarantees them from transformation at best into a formal scheme, at worst - into criminal chaos, and law itself is not law. Scientific novelty. It is established that the relationship between religion and law without taking into account the deep spiritual foundations of society, which are "on the other side" of ideas, no freedom of the individual, human rights, responsibility and personal guilt (and hence the legal tradition as a whole) However, science continues to have a negative attitude towards religion as a means of regulating social relations, which ultimately prompted us to try to consider this problem. Practical significance. Consideration of these problems is of purely practical interest, because in the context of methodological pluralism of modern jurisprudence, overcoming ideological monism and drawing on the experience of foreign jurists, the task is to reconsider the main issues of law in the system of social regulation. It should also be noted that despite a certain "renaissance" of religious themes, which is observed in modern legal literature, in scientific works there are almost no attempts to theoretically develop the relationship between religion and law.

В ПОИСКАХ ДУХА ПРОЦЕССУАЛЬНОГО ЗАКОНА

The article raises the question of the source of the spirit of procedural law. The options of expressing the spirit of procedural law in the principles of procedural law, human rights, social relations are consistently discussed. In particular, the author points out that the spirit of procedural law should be sought in the needs of specific public relations. The spirit of the law can be revealed in connection with the solution of a private issue, but it cannot be a private manifestation in itself, it must be expressed in the most general idea that best meets the criterion of universality. In conclusion, the researcher suggests that procedural issues should be allowed to be resolved on the basis of the need for a fair solution. In particular, it is pointed out that the very possibility of the court to base the resolution of a procedural issue, which has no other way of resolution, based on the need for fairness should be provided. It is also noted that such a mechanism can provide a legal basis for those judges who are willing to solve complex, unregulated procedural issues, embodying in their decisions the highest ideal of justice, its spirit – fairness.

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

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

Певец граций: галантный Монтескье («Книдский храм» и «Путешествие в пафос»)

The article represents the first academic study of two early Montesquieu’s works — “The Temple of Gnidos” (1725) and “Journey to Paphos” (1727). Under the guise of ancient heroes and gods these “novels with a key” portray real people easily recognizable by contemporaries — the author himself and his entourage. Mixing reality and fiction, Greek and Roman gods, using allegories, Montesquieu creates a “possible impossible world,” characteristic for the Baroque literature of the 17th century. The term was proposed by L. Dolezel, the founder of the theory of “possible worlds,” which allows a deeper understanding of how Montesquieu portrays an ideal world, opposed to the French reality, which he criticizes, as in his first novel “Persian Letters.” However, such features as fragmentation, frivolity, double meaning, hedonism are characteristic of the Rococo aesthetics that took shape in France at the beginning of the 18th century. These features are also inherent to such recognized author’s masterpieces as “Persian Letters” and “The Spirit of Laws” which prove out the unity of his artistic manner. Montesquieu’s early works clearly demonstrate the connection between the Baroque and the Rococo and represent the future author of the “Spirit of Laws” with a completely different side as a “singer of Graces” who contributed to the formation of a new aesthetics.

An Inquiry into the Origin of Gross Human Rights Abuses: Issues of Justice in the Spirit of Law

An Inquiry into the Origin of Gross Human Rights Abuses: Issues of Justice in the Spirit of Law

“Bodies can be compelled; minds must be turned, since they cannot be compelled”: Preaching as an “Introduction” to Law in the Ecclesiastes of Erasmus of Rotterdam

The recent studies on the relations between humanism or humanists and jurisprudence convince that Reneaissance, especially in XVIth century, when the national states began to raise, belonged to the periods of increased interest in the issue of law. Although Erasmus was not a layer, nor he introduced in any of his works a complete theory of law, he maintained close relations with many leading theoreticians of the law and jurists (Alciati, Budé, Cantiuncula, Zasius) and sometimes spoke in the legal discussions of his age. Among hist most important works concerning the matter of law were: Institutio principis Christiani, Ratio seu Methodus verae theologiae, Christiani matrimonii institutio, De interdicto esu carnium and Ecclesiastes. In the paper I’m going to concentrate on this latter work, in which Erasmus discusses the significance of preaching, preacher and widely understood Christian rhetoric. In the Ecclesiastes Erasmus touches the law subject with the special emphasis on historical character of law and relations between the divine law, the law of Christ and the law of Nature. After a short discussion about his understaning of law I will concentrate on the essential differentiation between the letter of law and the spirit of law, and I will point at proposed by Erasmus ways of introduction of law into human life. Erasmus, on the one hand, escaped a rigidity and abstraction of law and, on the other, he neutralised an aspect of the coercion of law. In his solution Erasmus appreciated the political dimension of preaching and acknowledged preacher as a more important guide of the people, than ruler. I’m going to interpret the Erasmian concept of preaching as an rhetorical mean of introduction of law in analogical way to “introduction” proposed by Plato in his Nomoi.

Konstantin Batiushkov "An Evening at Kantemir’s" (1816)

Konstantin Batiushkov’s “An Evening at Kantemir’s” (Vecher u Kantemira, 1816) is unique as a work of literature, a document of Russian intellectual history, and a cultural and artistic manifesto. The “Evening” takes its cue from the popular Enlightenment genre of “dialogues with the dead,” although Batiushkov brings together people who were contemporaries rather than widely separated historical figures, as was usual. In it, the poet Antiokh Kantemir (1708-44) challenges Montesquieu’s argument from The Spirit of Laws that Russia’s harsh climate has resulted in its alleged lack of civilization. Batiushkov was rewriting history with hindsight, and one of the charming aspects of the work is its slightly humorous and lightly ironic play with anachronism, as Batiushkov presents Kantemir as marvelously prophetic of the later successes of Russian literature. Typical is his interlocutor’s statement that “It is easier to believe that the Russians will storm Paris” than that Russia could produce a Lomonosov. Batiushkov himself was with the troops that took Paris in 1814, and the recent Russian victory was surely on readers’ minds as they read this piece. “An Evening at Kantemir’s” attempted to integrate the “new” Russian literature with the eighteenth-century “classicist” literary and Enlightenment tradition. It also illustrates Batiushkov’s faith in poetry as a fundamental way to advance the cause of national progress.

PRECONDITIONS OF ADMINISTRATIVE RESPONSIBILITY: DOCTRINAL ISSUES

A thorough analysis of liability for administrative offence is not possible without clear understanding of its preconditions. The problem of preconditions for administrative responsibility is directly related to administrative delictization of offenses, effectiveness of the fight against delict, prominent state policy in the field of law enforcement and law order. In this aspect, the role of the preconditions for administrative responsibility is a lot more important because they formulate proper foundations for achieving its general objectives. Thus, they determine the effectiveness of administrative responsibility at sectoral and general social levels. The importance of the definition is due to the urgent needs of rule-making and law enforcement practice, the effectiveness of which directly depends on how reasonable and appropriate each administrative delict norm is. Unfortunately, despite all its scientific and practical significance, the issue of preconditions for administrative liability has not been resolved yet. Therefore, there is a need to form unified, consistent scientific approach to understanding the grounds for administrative liability. To this end, the article provides a critical analysis of the basic doctrinal concepts of the preconditions of administrative responsibility. A wide range of social, economic, technical and other factors that determine the effectiveness of administrative responsibility, its current state, its dynamics and prospects for its development have been studied. Discovered the role of these factors in creating a favorable socio-economic and information-technical environment for the implementation of the main tasks of administrative responsibility, in particular: offences prevention, reliable protection of public relations and education of citizens in the spirit of law. The author concluded the scientific and practical expediency of the systematic study of the preconditions for establishing administrative responsibility (preconditions for administrative delictization) and the preconditions for the effectiveness of administrative responsibility.