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In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished. The present article tries to develop such a clear distinction. The existence of a legal power is described as a side-effect of legal rules that make it possible to bring about particular results. For example, Charlène has the legal power to reduce her tax obligations by moving from Belgium to Monaco. (The example is on purpose not of a juridical act.) Legal powers can be the side-effect of the existence of counts-as, fact-to-fact, and dynamic rules. A legal competence is described as a status, attributed by a legal rule, which is a necessary prerequisite for bringing about legal consequences by means of a juridical act. For example, Parliament has the competence to create statutes. Without this competence an attempt to make a statute would be invalid. The concept of a legal competence is in first instance an internal legal concept, meaning that it is a concept used in legal rules. In this respect it differs from the concept of a legal power, which is not used in legal rules, even though legal powers exist because of legal rules. The concept of a legal power is an external legal concept. If a legal power is to be exercised by means of a juridical act, but only then, the competence to do so is a necessary condition for the existence of this power.
Ratio Juris, 2017
The concept of legal power (often called legal competence) is important in the law since, with regard to actions having legal effect, the “exercise of legal power” delimits those actions for which manifestation of intention to achieve a legal effect is essential for the effect to ensue. The paper proposes a definition that captures this feature of legal power and marks it off from “direct effect,” as well as from permissibility and practical ability to achieve the legal effect. This analysis of power is limited to the “immediate” legal power of a physical person characterized by the power‐holder achieving a legal result by the power‐holder's own behaviour (not by representatives acting on behalf of the power‐holder). It is argued that in the literature on power the concept of legal power is frequently construed in such a way that it becomes either too broad or too narrow.
Revus. Journal for constitutional theory and philosophy of law, 2021
This work has two aims. Its first aim is to reject the widespread thesis that the legal normative systems determining the powers of public authorities are closed because they contain a rule stating that constituted authorities cannot execute normative acts if they have not been expressly authorised to do so. In other words, this rule states that any person whose normative status is not liable to the powers of a constituted authority by the constituent authority enjoys immunity from said authority. The second aim of the paper is to defend the (alternative) thesis according to which these systems are closed because they contain a residual closure rule that says that any person whose normative status has not been explicitly exempted from the competence of a constituted authority by an immunity established by the constituent authority is liable to its constituted authority. In pursuing these two goals, the author uses analytic tools developed to show that systems of regulative legal norms are closed if they contain a residual closure rule that says that anything that is not prohibited is permitted.
2014
ON PHILOSOPHISING AND THEORISING IN LAW LEGAL PHILOSOPHY, LEGAL THEORY – AND THE FUTURE OF THEORETICAL LEGAL THOUGHT [2006] 11–26: 1. Questioning and Knowing 11 / 2. Law and Philosophy [2.1. Law and Philosophical Wisdom 12 / 2.2. Appearances of Modern Formal Law 14 / 2.3. Differentiation in Complexity 16] 3. Conclusions [3.1. Legal Philosophising Reduced to Discourse-reconstruction 17 / 3.2. The Query for Natural Law Unresolved 19 / 3.3. Positive Law – without Legal Positivism? 23] 4. On What the Stake is 26 // LEGAL ONTOLOGY [1999] 27–30 // LAW AND HISTORY: ON THE HISTORICAL APPROACH TO LAW [1999] 31–35 // LAW AS HISTORY? [1986] 36–47: 1. Understandings of the Term ‘Law’ 36 / 2. Law and History [2.1. Law as Instrument 38 / 2.2. Law as Culture42] 3. Law as History 43 // VALIDITY [1999] 48–61: 1. Notions of Validity 48 / 2. Understandings of Validity 49 / 3. Statism and Dynamism of Law 54 / 4. Validity and the Realm outside the Law 55 / 5. Dissolution of the Notion of Validity? 58 // EX POST FACTO LEGISLATION [1999] 62–65 ON CONCEPTUALISING BY LOGIFYING THE LAW RULE AND/OR NORM: ON THE CONCEPTUALISABILITY AND LOGIFIABILITY OF LAW [2003] 69–78: 1. Rule/Norm 69 / 2. Origins and Contexture 70 / 3. With Varied Denotations 73 / 4. Norms Exclusively in Civil Law Rechtsdogmatik 74 / 5. Ambivalence in Language Use 77 // LEGAL LOGIC AND THE INTERNAL CONTRADICTION OF LAW [2004] 79–86: 1. Legal Logic 79 / 2. The Internal Contradiction of Law 83 // THE QUEST FOR FORMALISM IN LAW: IDEALS OF SYSTEMICITY AND AXIOMATISABILITY BETWEEN UTOPIANISM AND HEURISTIC ASSERTION [1973] 87–123: I. Systemicity [1. Form and Content {1.1. In Arts and Law 88 / 1.2. In German Philosophy 90} 2. Systemicity and Axiomatic Approach {2.1. The Idea of System and the Law-codes 95 / 2.2. Early Modern Times 97 / 2.3. Recent Times 100 / 2.4. Drawbacks in Philosophy104}] II. Axiomatism [3. The Want of Axiomatisability {3.1. From Deductivity to Axiomatisation 105 / 3.2. Futile Approximations at the Most 106 / 3.3. Lack of Deductivity in the Law’s Deep Structure112} 4. The Heuristic Value of an Ideal {4.1. Cases of N/A 113 / 4.2. Cases of Correlation 114} 5. Conclusion: Ideals and the Dialectics of Substantivity 122 // LAW AND ITS DOCTRINAL STUDY (ON LEGAL DOGMATICS) [2006] 124–175: I. The Doctrinal Study of Law [1. Legal Dogmatics in a Science-theoretical Perspective 124 / 2. The Process of Advancing Conceptualisation 128 / 3. Ideality versus Practicality in Legal Systemicity 133 / 4. Conceptualisation, Systematisation, Dogmatisation 135 / 5. Rules and Principles in Law 140 / 6. Correlation between Legal Cultures and Legal Theories 141 / 7. Theoretical and Socio-philosophical Perspectives143] II. Inquiry into the Nature of Doctrinal Studies in Law [a) Legal Dogmatics 147 / b) Non-conceptualised Traditions in Law 149 / c) The Stand of Law and of its Dogmatics 154] III. ‘Law’, ‘Science of Law’, ‘Science’ 157 [1. Critical Positions {a) Ad Mátyás Bódig ‘Doctrinal Study of Law and Jurisprudence’ 158 / b) Ad Tamás Győrfy ‘The Conceptual System of Law and the Dogmatics of Motivations’ 169 / c) Ad Péter Cserne ‘The Doctrinal Study of Law versus Policy’ 172} 2. In an Onto-epistemological Perspective 174] ON FORMS AND SUBSTANCE IN LAW STRUCTURES IN LEGAL SYSTEMS: ARTIFICIALITY, RELATIVITY, AND INTERDEPENDENCY OF STRUCTURING ELEMENTS IN A PRACTICAL (HERMENEUTICAL) CONTEXT [2001] 179–188: 1. Theoretical Background 179 / 2. Foundations of Structuring Challenged 181 / 3. Is there a Structure had? 184 / 4. Structuring as a Meta-construct 186 // GOALS AND MEANS IN LAW [2003] 189–201: 1. The Neutrality of Techniques 189 / 2. John Paul II [2.1. On Personhood, his Goods, and Law 191 / 2.2. On Person, Family, and Nation 196] 3. Artificiality and Antithetical Developments in Law 198 // LAW, ETHICS, ECONOMY: INDEPENDENT PATHS OR SHARED WAYS? [2004] 202–215: 1. “Cynical Acid” in the Foundation of Modern Formal Law 202 / 2. Example: Perspectives for Curing Malpractice in Law 205 / 3. Clash between Europeanism and Americanism 207 / 4. A Search for Reason and Systemicity 211 / 5. Ethics in Economy 213 // TOWARDS AN AUTONOMOUS LEGAL POLICY [1984] 216–221: 1. Relationship between Politics and Law 216 / 2. Legal Policy as a Mediator 218 / 3. Legal Scholarship, Legal Policy, and the Law on Law 219 / 4. Demand for an Autonomous Legal Policy 221 ON PROCESSES OF LAW THE JUDICIAL BLACK-BOX AND THE RULE OF LAW IN THE CONTEXT OF EUROPEAN UNIFICATION AND GLOBALISATION [2008] 225–242: I. Basic Issues in the Understanding of Law [1. Normativism and Legal Reality (Re)Construction 225 / 2. The Insufficiency of the Law Enacted 227 / 3. Duplicity of the Ontological Reconstruction of Judicial Process 227 / 4. The Law as Rule and the Law as Culture 231 / 5. Complementation by the Law’s Self-resolution in Post Modernism 232 / 6. The Metaphoric Nature of the Term ‘Law’ 234 / 7. Added Queries for the European and International Rule of Law 235] II. Questions to be Raised by Legal Arrangements Individually [8. Law as Subsistence and Law as Conventionalisation 236 / 9. Dilemmas of the Law Exhaustively Embodied by Texts, Thoroughly Conceptualised and Logified 237 / 10. Conservatio/novatio, ius strictum / ius aequum, generalisatio/exceptio, and the Moment of Decision 238] III. The Circle of Legal Arrangements to be Involved in the Investigation 240 [11. Cultures and Traditions to be Investigated 241] IV. Purpose and Impact of Investigations [12. The Tasks’ Horizons 241] DOCTRINE AND TECHNIQUE IN LAW [2002] 243–262: 1. Law, Legal Policy and Legal Technique 243 / 2. Formalism and Anti-formalism 245 / 3. Law as Potentiality and Actualisation 246 / 4. Example: Constitutional Adjudication 248 / 5. Legal Imaginability 251 / 6. Linguistic Mediation 254 / 7. Rechtsdogmatik 256 / 8. Clauses and Principles 258 / 9. With Safety Velvets Built in 260 // THEORY AND PRACTICE IN LAW: ON THE MAGICAL ROLE OF LEGAL TECHNIQUE [2006] 263–286: 1. Legal Formalism in a Practical Context 263 / 2. Magic in Law: Culture and Mediation 268 / 3. Legal Conceivability and its Limits 270 / 4. One Langugage, Unlabelled 272 / 5. Formalisation and De-formalisation: Principles as Safety Velves 276 / 6. Within Given Cultural Bounds 278 / 7. Kelsenian Re-interpretation: Law Getting Defined in Society 282 / 8. A Closed/Open Systemic Response 284 // LAW, UNDERSTANDING OF LAW, APPLICATION OF LAW (A SUMMARY OF DEVELOPMENTS IN THIRTY-SIX PARAGRAPHS) [2007] 287–303: I. Classical Heritage [1. Continental Law 287 / 2. Anglo-Saxon Law 291] II. Reality in our Approach to Law [1. As Professional Deontology 293 / 2. In its Theoretical Explanation 294] III. The Complexity of our Legal World Concept [1. The Complexity of Civil Law Mentality 301 / 2. The Complexity of Common Law Mentality 301] IV. With Humans in the Legal Machinery 302 APPENDIX: LEGAL THEORISING: AN UNRECOGNISED NEED FOR PRACTICING THE EUROPEAN LAW [2009] 307–354: 1. Introduction: Queries in European and Global Perspectives 307 / 2. Basic Issues [2.1. Human Refinement 310 / 2.2. The Westphalian Heritage of State Law and International Law 313 / 2.3. The Place of European Law 315] 3. Analogies [3.1. Solar System with Planets 319 / 3.2. Pre-modernity, Modernity, Post-modernity 320] 4. The Structural Pattern of the European Law [4.1. Legal Culture of the European Union 322 / 4.2. Implementing a Grand-System Functioning 328 / 4.3. With Legal Pluralism? 330] 5. Theoretical Model of the Operation of European Law [5.1. Multipolarity with Centripetality and Centrifugality 333 / 5.2. Order, Out of Chaos 336 / 5.3. Practical Continuum in a Standing Flux 342 / 5.4. Activated by Nations 347] 6. Conclusions for Practicing the European Law [6.1. The Ethos of the Tasks 349 / 6.2. For Reaching an Own Future, Thanks to Own Efforts 351] Index of Subjects 355 / Index of Normative Materials 362 / Index 364
Debates surrounding the concept of law are not new. For a wide variety of reasons and in a wide variety of ways, the meaning of 'law' has long been an important part of Western thought, both within legal scholarship and beyond. The contributors to Concepts of Law are international experts from the fields of comparative law, legal philosophy, and the social sciences. Combining theoretical analyses with case studies, they explore various legal concepts and contexts from diverse national and disciplinary perspectives. Legal and normative pluralism is a theme throughout. Some chapters discuss the development of state law and legal systems. Others wrestle with law’s rhetoric and the potential utility of alternative vocabularies, e.g., 'governance' and ‘governmentality’. Others reveal the rich polyjurality of the present, from the local to the global. The result is a rich picture of both present scholarship on laws and norms and the state of contemporary legal complexity, each crossing traditional boundaries.
2019
This article analyzes the fundamental issues of the evolution of approaches to the legal category of state power. The authors consider the phenomenon of power as one of the most important types of social interaction. The authors show that during this evolution, along with the preservation of universal (essential) characteristics due to the nature and social purpose of the state, there is a modification of those properties and characteristics of state power that have a specific historical character and depend on many factors affecting ways of implementing state power. The article reveals the main types of state power and methods of its implementation. According to the authors, the power is not the result of only violence, the suppression of one person by another, but comes from the very nature of man. The authors reveal the category of “state power” by examining its content, characteristics, elements, subjects, and objects. They examine the ways of expressing political power as a typ...
Artificial Intelligence and Law, 2007
Karina und Erich Schumann Centre for Advanced International Legal Studies Working Paper Series, 2022
The answer of the CJEU to the question of the perimeter of its jurisdiction when EU law and a third law cooperate in a matter is not fully satisfactory. Departing from the traditional approach, both cases in which EU law is applied in close connection to international law, and also those in which it is applied in connection to national law should be considered because both are expressions of the same problem, namely: the trend of the Court to unionize third law, and on that ground to extend its jurisdiction beyond a straight reading of EU primary law and international law practice. The delimitation of its jurisdiction that the CJEU provides in these cases is neither precise, nor safe. Above all, the underlying assumption that EU law is just as autonomous as national law has to be accepted and needs to be re-explained as a law essentially interwoven with others. The challenge lies in reconciling its unity with its compound character. This attempt should shed light also on another aspect of legal protection: the exercise of power by different national administrations within the same procedure. The connection between the two issues is the fact that EU law and the exercise of EU power depend existentially on the contribution of national ones.
ArtforumEDU, 2024
IT & C, 2023
Acta Orientalia Hung. Vol. 76, Issue 1, 2023
LUD Organ Polskiego Towarzystwa Ludoznawczego i Komitetu Nauk Etnologicznych PAN
Museo de Bellas Artes de Bilbao, 2024
Межа межі. Нотатки на полях книги Ігоря Чорновола «Компаративні фронтири: світовий і вітчизняний вимір» (Київ: Критика, 2015. – 376 с.) , 2016
Educação: Teoria e Prática, 2014
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სოხუმის სახელმწიფო უნივერსიტეტის შრომები XVI. proceedings of Sokhumi state university XVI, 2018
Jurnal Bisnis, Manajemen, dan Keuangan