scholarly journals CASTING THE LIGHT OF THE THEORY OF OPPOSITION ONTO HOHFELD'S FUNDAMENTAL LEGAL CONCEPTS

Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
João Alberto de Oliveira Lima ◽  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi ◽  
Marcio Iorio Aranha
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Analytical Framework ◽  
The Core ◽  
Recent Developments ◽  
The Law ◽  
Opposition Theory ◽  
Legal Concepts ◽  
Number Of Authors

Abstract At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

scholarly journals Law as Culture? Culturalist Perspectives in Legal Theory and Theory of Methods

2017 ◽  
Vol 18 (2) ◽  
pp. 255-270
Author(s):  
Franz Reimer
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Legal Culture ◽  
Cultural Practice ◽  
The Other ◽  
Legal Norms ◽  
The Law ◽  
Fact Finding ◽  
The Concept Of Law ◽  
Traditional Approaches

This Article questions in what sense law in the German tradition has been—and can still be—considered a form of culture. The Article offers an overview of traditional approaches to law and culture in German Legal Theory and the Theory of Methods, and argues that the law has shifted from being perceived as culture during the nineteenth and early twentieth centuries to being in contrast with culture, which is considered the “other” of the law. Mediated by “legal culture,” the discourse pendulum has swung back to the notion of “Law as Culture” during the last three decades. Thomas Gutmann, the German lawyer, has fiercely challenged equating law with culture, describing it as “murky” and irrelevant. Similarly, the concept of “Law as Culture” is questioned by the provocations of “Law and Affect.” This Article claims that, irrespective of conceptual framework trends, applying the law remains a highly challenging cultural practice in terms of both fact-finding and interpreting legal norms.

New Trends in Islamic Legal Theory: Maqāṣid al-Sharīʿa as a New Source of Law?

2017 ◽  
Vol 57 (1) ◽  
pp. 7-32 ◽  
Author(s):  
Felicitas Opwis
Keyword(s):  
Legal Theory ◽  
Public Policies ◽  
Islamic Legal Theory ◽  
Recent Developments ◽  
The Law ◽  
Definition Of ◽  
Proactive Role

The purposes of the law (maqāṣid al-sharīʿa) were traditionally tied to the definition of maṣlaḥa expounded by al-Ghazālī and employed in legal analogy (qiyās) and precepts (qawāʿid). This article addresses recent developments in the interpretation of the maqāṣid al-sharīʿa in the works of legal scholars promoting alternative interpretations, such as Ibn ʿĀshūr, Yūsuf al-Qaraḍāwī, Aḥmad al-Khamlīshī, Yaḥyā Muḥammad, and Jamāl al-Dīn ʿAṭiyya. Several trends can be observed: rejecting the Ghazalian definition of essential necessities by enlarging their scope beyond five and including justice, freedom, and equality; refining the categories of the purposes and creating more nuanced hierarchies of maṣlaḥas; and expanding the application of the purposes of the law beyond the sphere of the law proper, thereby giving considerations of maṣlaḥa a proactive role in shaping society through public policies. It is suggested that new interpretations of the objectives of the sharīʿa also alter the traditional four sources of law theory (uṣūl al-fiqh).


scholarly journals Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

2021 ◽  
Author(s):  
◽  
Luke Richard Nottage
Keyword(s):  
United States ◽  
New Zealand ◽  
United States Of America ◽  
Legal Theory ◽  
Analytical Framework ◽  
The United States ◽  
Contract Law ◽  
Legal Studies ◽  
The Law ◽  
Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

scholarly journals THE LEGAL REASONING OF THE PRESIDENT’S RIGHT TO ISSUE PARDONS

SEEU Review ◽  
2017 ◽  
Vol 12 (2) ◽  
pp. 32-61
Author(s):  
Besa Arifi
Keyword(s):  
Criminal Law ◽  
18Th Century ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Theory And Practice ◽  
Head Of State ◽  
Recent Developments ◽  
The Law ◽  
Principle Of Legality ◽  
Desk Research

Abstract Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign (usually the king/queen or the emperor/empress) represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty (given by the parliament) and pardon or clemency (given by the head of the state), continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions.

The Law of Trusts

2019 ◽  
Author(s):  
JE Penner
Keyword(s):  
Unjust Enrichment ◽  
The Core ◽  
Previous Edition ◽  
Recent Developments ◽  
Key Issues ◽  
The Subject ◽  
Student Reader ◽  
The Law ◽  
Difficult Subject

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. The Law of Trusts provides perceptive analysis and original and thought-provoking commentary to give students a grounding in what is considered to be a difficult subject. The book introduces the controversies surrounding the topic in a thought-provoking way, engaging the reader and giving an all-round picture of the key issues relating to the subject. New to this edition, Chapters 3, 5, 11, and 13 (Chapter 12 in the previous edition) have all been significantly revised to reflect recent developments in the law and the academic commentary on, respectively, beneficiaries’ standing to sue and rights to information, resulting trusts, breach of trust, and the law governing fiduciaries. Chapter 12 ‘Restitution, unjust enrichment, and the law of trusts’ is new; it brings together material previously found in other chapters, organising it in a more coherent way for the better appreciation of the student reader, whilst also containing a wholly new discussion of the leading cases and academic commentary in this area of law.

scholarly journals Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

2021 ◽  
Author(s):  
◽  
Luke Richard Nottage
Keyword(s):  
United States ◽  
New Zealand ◽  
United States Of America ◽  
Legal Theory ◽  
Analytical Framework ◽  
The United States ◽  
Contract Law ◽  
Legal Studies ◽  
The Law ◽  
Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

Military Professionalism and Humanitarian Law

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Humanitarian Law ◽  
New Paradigm ◽  
The Core ◽  
Humanitarian Mission ◽  
Self Defense ◽  
Professional Perspective ◽  
The Law ◽  
Preemptive Strike ◽  
Military Professionalism

This book seeks to revitalize the humanitarian mission of the international law governing armed conflict, which is being frustrated due to states’ actual practice. In order to achieve its two aims—creating an environment in which full abidance by the law becomes an attainable norm, thus facilitating the second and more important aim of reducing human suffering—it calls for the acknowledgment of realpolitik considerations that dictate states’ and militaries’ behavior. This requires recognition of the core interests of law-abiding states, fighting in their own self-defense—those that, from their militaries’ professional perspective, are essential in order to exercise their defense. Internalizing the importance of existential security interests, when drawing the contours of the law, should not automatically come at the expense of the core values of the humanitarian agenda—for example, the distinction rule. Rather, it allows more room for the humanitarian arena. The suggested tool to allow for such an improved dialogue is the standards and principles of military professionalism. Militaries function in a professional manner; they respect their respective doctrines, operational principles, fighting techniques, and values. Their performances are not random or incidental. The suggested paradigm surfaces and leverages the constraining elements hidden in military professionalism. It suggests a new paradigm in balancing the principles of military necessity and humanity, it deals with the legality of a preemptive strike and the leveraging of military strategy as a constraining tool, and it offers a normative framework for introducing deterrence within the current contours of the law.

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