Juristic Methodology

This paper analyzes the different methodological systems used in Bulgarian General legal theory. The choice of methodology is seen as a mean of achievement of the goals of legal education. I accept, that good legal education must prepare legal faculty graduates for the different social roles of modern jurists. In that connection the paper investigates the matter of the " non-legal " knowledge and gives an answer, if the legal education must provide social, political and philosophical knowledge to the students.

The status of ‘international law’ is examined critically. In the first section, the basis of (national) legislation is described. This consists of an inquiry into a credible meaning of ‘natural law’. It is focused on the question whether universal principles exist and, if so, of what kind. Section 2 deals with the issue of enforcement. National legislation invariably realizes this, but this is not obvious at the international level. Section 3 deals with human rights. It is discussed whether their presence points to the existence of ‘international law’. To this end, a possible reason for these rights to have developed is expounded.

Τρεις αποφάσεις και ένα επιμύθιο για τη νέα μετατροπή τής Αγίας Σοφίας σε τζαμί. (Mετάφραση και σχολιασμός της δικαστικής απόφασης 2020/2595 τού τουρκικού Σ.τ.Ε. και των εκτελεστικών διαταγμάτων τού 1934 και 2020).
Three decisions regarding Hagia Sophia, with an epilogue. (Translation into Greek αnd Commentary of the 2020/2595 Turkish Council of State Decision on the Proper Use of Hagia Sophia in Istanbul, along with the 1934 and 2020 Administrative Acts).

Résumé

« Grâce à une première consultation de ses archives privées, il est possible d’en savoir plus sur Joseph Charmont (1859-1922), civiliste montpelliérain devenu philosophe du droit. Catholique dreyfusard, fermement républicain, démocrate convaincu, Charmont adhère à l’individualisme juridique issu de la Révolution. Néanmoins, lecteur de Zola, il s’émeut des conséquences néfastes du “laissez-faire”, la misère ouvrière principalement, rendues possibles par ce même individualisme libéral. Alors que le pape Léon XIII propose un juste milieu entre libéralisme et justice sociale afin de trouver une solution à la “question sociale”, Charmont emboîte le pas en accompagnant et en promouvant ce qu’il nomme le mouvement de “socialisation du droit”. En parallèle de son action sociale personnelle, le professeur montpelliérain soutient l’interventionnisme étatique, amorce de l’État-providence et se déclare favorable aux évolutions jurisprudentielles socialisantes. Sa recherche d’une troisième voie entre libéralisme et socialisme le classe parmi les juristes catholiques sociaux. À partir de données pratiques, il charpente sa pensée autour d’une philosophie du droit naturel revisitée selon une certaine forme de kantisme. Presque oubliée en France, la pensée de Charmont, au-delà de l’éclairage qu’elle propose du “moment 1900”, donne des éléments au lecteur pour interroger l’idée de droit naturel et la manière d’appréhender l’histoire de celle-ci. »

Abstract

« Thanks to an unprecented consultation of private (family) archives, it is possible to acquire a deeper knowledge of Joseph Charmont (1859-1922), the first president of the Montpellier Section of the Ligue des droits de l’homme : professor of civil law in Montpellier, philosopher of law, Charmont was a “Dreyfusard” Catholic, firmly republican, and a convinced democrat. He subscribed to the juridical individualism coming from the French Revolution, yet admired Emile Zola, and was disturbed by the disatrous consequences of “laissez-faire”, principally the destitution of the working class. As Pope Leo XIII proposed a proper balance between liberalism and social justice in order to find the solutions to social issues, Charmont followed suit in accompanying and promoting what he called the movement of the “socialization of law”. In keeping with his own personal social undertakings, Charmont supported state interventionism, the beginnings of the welfare state, and was favorable to the evolution of socializing case law. His search for a “third way” between liberalism and socialism earns him a place among “social Catholic” jurists. He constructs, out of practical cases, his reflection on a philosophy of natural law modified by a certain form of Kantism. Almost forgotten in France, the reflections of Charmont, beyond the light they shed on the “1900 moment”, are interesting for the elements they furnish to a study of the history of natural law. »

The aim of this paper is to propose a critical solution to the debate between Klaus Günther and Robert Alexy about the distinction between the justification and the application of norms. One of the main issues in this debate is whether a modified norm serving for the production of an ideal coherent system among the colliding norms has to be justified. This question, in my view, cannot be satisfactorily answered without a clarification of the concept of coherence and its significance for justification of norms. In this paper I will argue the resolution of norm collision in a certain application situation can be reconstructed as a process of revising an incoherent set of norms to a coherent one. By way of this reconstruction, it can be shown that the modified norm, as Günther claims, is already contained in the resultant coherent set; however,
achieving a coherent set of norms is still a procedure of justification. Therefore, the resolution of norm collisions in a certain application situation cannot avoid the problem of justification.

Translator's note: This is not strictly literal, where called on the sense of the words has been chosen ahead of what exact cross referencing would produce. I dedicate this effort to my eldest sister Helen whose encouragement of readers and authors alike gave me the determination to persevere past intention, having made a start, continue and ...surprise... make a rough enough finish. Well, Larosi wrote his story in two parts, I thank him for his foresight in making the task easier. While his second part has been read by me and worked on, my admittedly flimsy knowledge is in need of what only others can supply. Additionally Larosi Haidar and the group of writers to whom he belongs provide encouragement to the task of cooperative addition to a work. So, with relish applied in the hope that the imagery in the story is intact. His account starts with an illustration entitled : << Casamar, 23/08/2008>> by the Sahraoui artist Harima Mohammed, a work in coloured sand, as is customary in these parts. The picture shows a stone building on a tidal reef south of Cape Juby. Casamar is slightly offshore and was built by an assortment of workers both local and Canarian. The building dates from 1882, acknowledged by the builders in the form of a plaque, as shown by the artist as a small bright patch in the building. Gulls have been a big factor in this meeting of sea and land reveling in the riches of the Atlantic coast. Human aviators also. And more recently time travellers beaming around the planet via pulsating satellites, riding in and around on digital data.

Thai Civil and Commercial Code, Section 4 allows the court to take. "Local custom" is used in judicial decisions as a legal norm. The problem is what kind of local customs thatThai legal system will be accepted as a law? This research has been carried out using the permissive theory (Gestatungstheories) and the statues interpretation theory.The preliminary results of this research show that local customs are the legal status in the Thai legal system. It is the same with customary law. According to studies, it has been found that local customary law is compound of 5 elements as follow; (1) It is a long-standingpractice. (2) People who behave themselves feel the need to do so and will be bad for themselves if they do not behave that way (opinio juris).(3) Local custom must not conflict with the provisions of applicable law in the country. It must not be against the public order and good morals of the people. (4) Local custom is a fact-creating law, so whoever claims its existence must has a burden of proof and (5) The court accepts enforcement as a law applicable to the case.