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Search Results: 1 - 10 of 14216 matches for " legal theory "
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Cordero Quinzacara,Eduardo;
Revista de derecho (Valdivia) , 2006, DOI: 10.4067/S0718-09502006000100006
Abstract: the author describes the current state of chilean constitutional theory regarding the right of property. he does it by examining the regulatory history of this right, the records of the comisión de estudios de la nueva constitución (commission for the study of the new constitution) and the most relevant judicial decisions on the subject. the aim of this paper is to reveal the deficiencies of this theory and to propose the basis for a redefinition of the meaning of the constitutional guarantee of property.
Comment on Geir Stenseth’s Secrets of Property in Law - Anmerkung zu Geir Stenseths Secrets of Property in Law
Ino Augsberg
Ancilla Iuris , 2009,
Abstract: No fundament but a few possible perspectives for future research - Keine Grundlegung, aber einige m gliche Perspektiven für künftige Untersuchungen
Current Empirical Premises to the Disclosure of the Secrets of Property in Law - A Foundation and a Guidline for Future Research
Geir Stenseth
Ancilla Iuris , 2009,
Abstract: This article presents an empirical legal study in the field of property theory. I take as my point of departure the perspective of exclusion. Such a basic perspective falls short, however, when we conceptualize the exceptions from the exclusion rule. In this respect, a diversified set of considerations and concerns claims attention, including the nature of the relationship between the possessor and the object in question. This research digs into the new achievements in the fields of economics and life sciences, investigating the validity and relevance of arguments which may be derived from the possessor-object dimension. The findings suggest a differentiated view on how people comprehend various situations of possession, and the article proposes a gradual theoretical model for shaping and managing the legal concept of property in this respect. Finally, I indicate some practical legal topics which may take advantage of the model (e.g. the field of expropriation, the problem of whether a possession should be protected by a property rule or by a liability rule, and the problems related to property as a human right).
Harold J. Berman (1918 ‐ 2007)
Thomas Vesting
Ancilla Iuris , 2008,
Abstract: In the 20th century, a specifically normative integration of Western civilization collapsed – and in the 20th century all paradigms corresponding to this system lost their meaning. The symbols of a great Western (legal-) society regressed into nothing more than shallow and abstract nationalisms; visions of a just community were transformed into the law of nation-focused social engineers on both sides of the iron curtain. Expedience, practicability, and the reduction of law to an apparatus of technical tricks, replaced fundamental legal convictions. A world ends when its metaphor has died. These are the core theories in Harold J. Berman’s book Law and Revolution: The Formation of the Western Legal Tradition, which made him famous.Im 20. Jahrhundert ist eine spezifisch normative Integration der westlichen Zivilisation zusammengebrochen, womit auch die darauf zugeschnittenen Paradigmen ihre Substanz verloren haben. Aus den Symbolen einer gro en abendl ndischen (Rechts-)Gemeinschaft wurden flache und abstrakte Nationalismen, aus der Vision einer gerechten Gemeinschaft das Recht von staatsfixierten Sozialingenieuren diesseits und jenseits des Eisernen Vorhangs. Zweckm igkeit und Praktikabilit t, das Herunterbringen des Rechts auf einen Apparat technischer Kunstgriffe, traten an die Stelle grunds tzlicher Rechtsüberzeugungen. A world ends when its metaphor has died. Das sind, leicht zugespitzt, die Kernthesen des Buches, mit dem Harold J. Berman berühmt geworden ist: Law and Revolution: The Formation of the Western Legal Tradition.
Interpretación postmoderna del pluralismo legal como fundamento para una nueva Teoría del Derecho
Frónesis , 2006,
Abstract: the objective of this paper is to reflect on the new world reality, which presents a scenario that lacks the essential unity of traditional central statehood, and is conformed of mini-nationalities disseminated throughout national territories within a new focus as to horizontal rights which supplants the concept of judiciousness for a definition far from the positivist state synonym of the kelsian conception. for this reason it is necessary that the absoluteness and totalitarian vocation of national rights be substituted for a juridical pluralism in which along with centralist regulations, forms of inter-subjectivity and social control of historically differentiated human groups within the state conglomerate such as autonomous indigenous populations, can co-exist.
Principios y reglas: una aproximación desde los criterios de distinción
Boletín mexicano de derecho comparado , 2003,
Abstract: the author examines the criteria to distinguish between principles and rules, taking as a point of departure the theory of robert alexy. the author explains the critique developed by aulis aarnio and luis prieto sanchís to said theory. the former denies the existence of a distinction between principles and rules; while the latter argues that, even if the distinction is admitted, it is irrelevant, because it adds little in support of the critique to legal positivism. finally, the author contradicts the two critical arguments mentioned, and develops a proposal that distinguishes between "strong" principles and other kind of principles, stressing the reasonableness of the former.
‘Constitutional Dialogue’: An Overview
Anne Meuwese,Marnix Snel
Utrecht Law Review , 2013,
Abstract: It is clear that 'constitutional dialogue' often serves as a convenient metaphor, but how can we employ it in such a way that it advances contemporary research in public law? This article presents a structured literature review on the subject, draws out certain possible caveats and provides suggestions for how to forge ahead with developing and using the concept of 'constitutional dialogue'. We explore various theoretical approaches to 'constitutional dialogue' in relation to different institutional settings. The concept of constitutional dialogue can be applied in institutional settings beyond courts and legislatures and is increasingly being applied in such a way. As part of our exploration of the implications for legal research we propose distinguishing between the use of 'constitutional dialogue' as a 'lens' and as a 'method' and making a clear choice between empirical and normative analysis.
Intention to Create Legal Relations and the Reform of Contract Law: A Conservative Approach in the Modern Global Era  [PDF]
Zhixiong Liao
Beijing Law Review (BLR) , 2013, DOI: 10.4236/blr.2013.42011
Abstract: This paper is partially to refute the submissions by Gulati’s article recently published on Beijing Law Review which proposes abandoning the requirement of proving intention to create legal relations for the formation of an enforceable contract. After a critical analysis of the abandonists’ arguments, this paper argues that intention to create legal relations is the “marrow of contractual relationships” and the arguments for abandoning such a requirement because of the existence of consideration and/or offer and acceptance as test(s) of contractual enforceability is untenable and unconvincing. Consideration and/or offer and acceptance may be evidence of serious intention to be bound somehow but unnecessary intention to be bound legally. For a number of reasons, the doctrine of consideration is very unlikely to work any better than the intention to create legal relations test. If a test of contractual enforceability must be abandoned, that should be the doctrine of consideration rather than the intention to create legal relations. This paper compares the current positions of some common law jurisdictions, upholds the needs of stability, consistency, and the harmonisation of contract law in the modern global era, and proposes a conservative approach of contract law reform regarding the intention requirement and the related presumptions, that is, all common law jurisdictions should “go back” to the orthodox English position.
Hormazábal Malarée,Hernán;
Revista de derecho (Valdivia) , 2005, DOI: 10.4067/S0718-09502005000200008
Abstract: the adaptation of the concept and content of criminal responsibility to constitutional rights is one of the most serious omissions in criminal law discourse. the concept of criminal responsibility must return to the confrontation between the citizen and the state that existed during the enlightment, not from a theoretical perspective and a pretended homogeneous rationality, but from the assumption of social inequality. the state is required to take an active stance in redistribution of the social goods. in criminal law this active stance is made real in the consideration of the person′s cultural, social and economic capabilities, in the process of imposing punishment. criminal liability for the infringement of the law is not only the perpetrator′s but it is also society′s responsibility
Bernasconi Ramírez,Andrés;
Revista de derecho (Valdivia) , 2007, DOI: 10.4067/S0718-09502007000100001
Abstract: this article offers an answer to the question: under which definition of science is the study of positive law a science? in accomplishing its purpose, the author criticizes the understanding of law as a "sui generis" discipline and the related idea that the dilemmas faced by the legal doctrine are, by definition, only of domestic implications and interest. instead, it is claimed that, as well as all scientific propositions, whether from exact, natural or social sciences or humanist studies, the propositions of legal theory are scientific, when verifiable. verifiability in turn, depends on a) the discussion on positive national law being related to a general legal problem that surpasses the singularities of national jurisdictions; b) the degree to which the discussion has been exposed to examination by the specialists community able to exert a verification judgment; and c) the size of such an experts community.
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