THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE最新文献

{"title":"Authentic interpretation of legal norms: theoretical aspec","authors":"M. V. Osiadla","doi":"10.33663/2524-017x-2021-12-37","DOIUrl":"https://doi.org/10.33663/2524-017x-2021-12-37","url":null,"abstract":"The article examines the problem of interpretive activity in the law enforcement process, which is due to the need to clarify the content of the legal norm. The issue of interpretation in the process of application of legal norms is considered, as the modern Ukrainian legislation is not regulated and contains internal conflicts. The article describes the types of official normative interpretation, in particular, as authentic, legal, departmental. The use of interpretation in the law enforcement process as an opportunity to understand the essence of legislative terms,ensuring equal application by all subjects of public relations, which involves compliance with the principle of legitimate expectations and the rule of law.\u0000\u0000Keywords: interpretation, application, authentic interpretation, casual interpretation.","PeriodicalId":359905,"journal":{"name":"THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133032971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interpretation of law as a problem of legal hermeneutics: some questions of theory","authors":"O. Bohinich","doi":"10.33663/2524-017x-2021-12-19","DOIUrl":"https://doi.org/10.33663/2524-017x-2021-12-19","url":null,"abstract":"The article considers the issue of interpretation of law in the context of the methodology of legal hermeneutics. The key concept of hermeneutics is the concept of understanding. The modern category of understanding is not a way for a person to know the world, but a way of being in the world and has an ontological (rather than psychological, epistemological or logical) character, ahead of any human activity as a prediction (preconception). If hermeneutics is a reconstruction of objectified semantic intentions, then legal hermeneutics is a search in human existence, society for the above values of law and their further formalization in written law. Thus, the interpretation of law in a broad sense is the finding in the material and / or spiritual spheres of its own values and the further implementation of the found in real social relations through the appropriate procedures of lawmaking and law enforcement.\u0000\u0000Such values as good and justice are in particular such value bases. And it is the observance of the latter in the lawmaking process that will allow the legislator with a high degree of probability to identify the normative legal acts adopted by him as those based on legal principles. In this regard, we must agree that the non-classical theory of cognition, in which thinking is considered, above all, as a process of creating meaning or understanding, which occurs in the unity of different types of cognition – sensory, intuitive and rational, more adequate to the nature of intellectual activity. in the course of understanding the law, which has a pronounced practical component.\u0000\u0000In addition to the interpretation of law as an objective phenomenon, which is not yet mediated by positive legislation,the subject field of research is also the rules of law, which have already undergone such a transformation. The need for interpretation of legal requirements is due to the possibility of unequal understanding of legal norms and their inadequate implementation in the process of law enforcement. \u0000\u0000This direction of interpretation in science is better known. Thus, most scholars distinguish between linguistic (linguistic), logical, historical, systemic, teleological ways of interpreting the rules of law.\u0000\u0000It is noted that the teleological method of interpretation of law corresponds to the hermeneutic method of interpretation. The opinion is shared that at the present stage of development there is a of formation of a new direction of legal science with a tendency to formation of a new integrative concept of hermeneutic legal understanding. This type of legal understanding is obliged to give a holistic view of law, overcoming the limitations of sociological, historical, legal and other approaches to it.\u0000\u0000Keywords: Interpretation of law, legal hermeneutics, ontological status of law, ontological status of legal hermeneutics.","PeriodicalId":359905,"journal":{"name":"THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116346051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Methodological basis of scientific research of intellectual property as a value-legal phenomenon","authors":"M. Kotenko","doi":"10.33663/2524-017x-2021-12-27","DOIUrl":"https://doi.org/10.33663/2524-017x-2021-12-27","url":null,"abstract":"The relevance of scientific knowledge of value and legal aspects of understanding intellectual property is revealed in the work. The philosophical and scientific basis of scientific research of value-legal aspects of understanding intellectual property is established. The scientific views of scientists concerning the understanding of the methodological basis of scientific research of state and legal phenomena and processes are generalized, the prospects of its application to the knowledge of value and legal aspects of intellectual property are determined, and possible scientific results can be obtained. It is concluded that the current state of scientific development of the problems of axiology of understanding intellectual property. \u0000\u0000Having identified and established the functional aspects of the methodological basis of knowledge of value and legal aspects of intellectual property, it is noted that the use of broad tools of modern methodology of knowledge of state legal phenomena and processes has a positive value only if the methodological strategy of scientific research as a whole. the prism of a specific approach to its perception and understanding. Otherwise, the scientific research itself will turn into an artificial application of methodological tools, the result of which will be a wide range of multi-vector, inconsistent information about the subject of research. Therefore, it is important to determine the methodological strategy of the study, which will be based on a specific methodological approach (approaches), which will generalize the understanding of the subject of research, which will be taken as a basis: first, determine its cognitive potential; secondly, the definition of methodological tools of the study; third, the study of those aspects that are insufficiently disclosed in legal science; fourth, the formation of a conceptual idea of the subject of research based on the results of its scientific knowledge.\u0000\u0000The author proves that it is most expedient to apply the «pluralistic approach» to the formation of the methodology of scientific research of value-legal aspects of intellectual property, which includes: 1) establishing the functional capabilities of generally accepted in the system of social sciences, legal sciences and legal theory methodological tools value-legal research of intellectual property, determination of cognitive perspective of its application; 2) determination of the advantages of a specific methodological approach to the value-legal study of intellectual property, which will determine the general cognitive strategy of this scientific work, which we will emphasize separately in the next section of the dissertation.\u0000\u0000This approach, in our opinion, will combine the general doctrinal vision of the problem of value and legal dimension of intellectual property, determine its purpose, set research objectives, as well as to clarify the specific instrumental mechanisms for achieving it.\u0000\u0000Keywords: intellectual proper","PeriodicalId":359905,"journal":{"name":"THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132338352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Error both in the general philosophical sense and as a subject of study of legal science","authors":"S. Havrilyuk","doi":"10.33663/2524-017x-2021-12-25","DOIUrl":"https://doi.org/10.33663/2524-017x-2021-12-25","url":null,"abstract":"The article focuses on the exploration of philosophical teachings on the concept of «error». Philosophers of antiquity introduced the concept of «natural law», which was formed over the centuries from the human desire to understand the world and to determine our place in society. It was from that time that the concept of human rights gradually began to emerge, and the links between the state and individual and the state and society were established. Error was considered the result of the erroneous course of thought, wrong actions, actions that do not achieve the goal: model of human behavior based on delusions. An error is always aberration: an action opposite of the correct one and committed unintentionally. It always implies illegality. Errors are associated with the wrong course of thought in reasoning, inadequate thinking, misinterpretation and inaccuracy of actions and violation of certain rules. Such fallaciousness of thought and action violates the truth of the substance of thinking and activity and thus leads to various kinds of errors.\u0000\u0000It should be indicated that the problem of error has an independent meaning in various fields of scientific knowledge:philosophy, logic, mathematics, law, cybernetics, medicine, linguistics, economics, etc. Through the analysis of the concepts and signs of errors provided by the philosophers mentioned in the article we conclude that error should be considered as both process and result of human activity. In addition, the ambiguous positions of modern legal scholars on the semantic meaning of the terms «error» and «legal error» are highlighted, which often leads to inconsistencies in the conceptual apparatus of modern legal theory. They may interpret the concept of «error» as a shortcoming, a flaw, a mistake, a distortion or in a more categorical way: a delusion, an imperfection, an inconsistency or a gap.\u0000\u0000Particular attention is paid to the causes of legal errors, in particular, it is noted that in modern legal science they are divided into objective errors which do not depend on the will and conscious actions of lawmakers and subjective which is generated through the will of lawmakers, as only professional legal activity and its results may be the potential sources of error. The objective causes of legal errors include the constant development of public relations, as the legislator and other legal bodies and institutions do not always keep up with the demands of life. In turn, subjective factors stem from personal qualities, human behavior and actions. In general, legal scholars define legal error as a negative result caused by unintentional, incorrect action of the subject of legal activity and as various accidental and unintentional actions on the course of the decisions of the subjects of legal relations (legal body or public official), which reflects the flaws of the will of the subject of law in the process of expression of such will, leads to a negative result and can be committed at any stage of ","PeriodicalId":359905,"journal":{"name":"THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132426757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Special guarantees as a component of the constitutional and legal mechanism for ensuring human rights and freedoms in Ukraine","authors":"A.V. Luzhanskyy","doi":"10.33663/2524-017x-2021-12-29","DOIUrl":"https://doi.org/10.33663/2524-017x-2021-12-29","url":null,"abstract":"Since the constitutional and legal mechanism for ensuring human rights and freedoms in Ukraine is a rather complicated theoretical construction, not all of its components can be qualified as those that have been studied at the proper level. This makes it necessary to determine the basic constitutional guarantees of human rights in Ukraine and to clarify the content of special guarantees as a component of the constitutional and legal mechanism for ensuring these rights. On the basis of the study, it was noted that legal guarantees should have a legislative form of their consolidation. The main constitutional guarantees of human rights in Ukraine are highlighted, as well as special guarantees of human rights are identified as the integral system of legal conditions, methods and means that, in combination, ensure the process of unhindered implementation of the right, its protection and restoration in case of violation.\u0000\u0000Taking into account this definition, the author’s vision of the content of special guarantees of human rights is proposed by specifying a list of its structural components: ensuring the legal regime of inviolability of law – the impossibility of its cancellation, prohibition of narrowing the content and scope of law when adopting new laws or amending existing laws, prohibiting limitation of rights even under martial law or a state of emergency; it is guaranteed by law, incl. at the level of an act of supreme legal force – by the Constitution of Ukraine; the existence of legal guarantees of rights as a component of human rights; the obligation to carry out activities by public authorities, their officials only on the basis, within the powers and in the manner provided for by the Constitution and the laws of Ukraine; the possibility of protection both nationally and internationally; conditionality of its protection by the coercive force of the state or by the control functions of international organizations; the inexhaustibility of the list of human rights defined by the Constitution of Ukraine, which is a prerequisite for both the legislative introduction of new rights and the expansion of the content and scope of existing rights.\u0000\u0000Keywords: special guarantees human rights and freedoms, constitutional and legal mechanism.","PeriodicalId":359905,"journal":{"name":"THE INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116737479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}