Studia Erasmiana Wratislaviensia - Introduction (original) (raw)
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THE CONCEPT OF LAW AND JUSTICE
Prizren Social Science Journal, 2020
From the views and changes that have followed the dynamism of our society, undoubtedly, law and justice have played a crucial role as a very abstract term that has been consumed almost from the first beginnings of human society to our modern days. Beyond the events and circumstances that societies in the past have had and organized by defining and choosing the way of life, and often times the right has been personalized by a certain group of people, or by a military division that has given rights and has created justice, in certain interests and for personal and charismatic purposes it has been denied a certain part of society, and has often been deformed in scandalous ways by reflecting, on the fact that the giver of this right has often been pointed out to be the man, but this convulsion in no case has lasted long, and often this theory has remained unrealized, reflecting that right is something natural and that the individual gains at the moment of birth and enjoys it to death, this divergence and complexity of the way of perceiving the law has often resulted in wars and the acquisition of this vital right. Through this paper we will draw philosophical and legal paradigms, analyzing from a retrospective way of the application of law and the applicability of justice, as an important mechanism of regulation of social relations. Law and justice have a common path of development, one by regulating the way of life of the people, that is, by issuing norms and the other by giving justice to the relative complexity and cohesion of interpersonal relations.
History, Law, and Justice: Empirical Method and Conceptual Confusion in the History of Law
UC Irvine Law Review 5 (2015): 413–62, 2015
This Article draws on Wittgenstein’s Philosophical Investigations, Ulpian’s definition of law, and Aristotle’s definition of the polis in order to improve our understanding of the relationship between history, law, and justice. It makes three points. First, real progress can be made by taking one’s instruction from Wittgenstein’s lifelong attempt to banish meaninglessness from thought and speech. He has far more to offer than has been recognized to date. Second, historians of law deceive themselves if they believe that they can write the history of law without writing the history of justice at one and the same time. Law and justice are thoroughly intertwined. Their intertwinement constitutes their meaning. Treating one of them in isolation from the other impairs the meaning of both. Third, writing the history of law means making a commitment to a political community by settling disagreements with the dead. It furnishes a kind of knowledge that is essential for maintaining justice because it gives a meaning to “law,” “justice,” and “politics” without which law, justice, and politics fall to the judgment of the dead or that of arbitrary rulers. It does not consist of writing about justice, but of making judgments in writing about the history of law. It is neither to be confused with expressions of opinion nor with statements ofpure fact: not expressions ofopinion, because it requires statements offact; not statements of pure fact, because there are no facts to state without agreement in the judgments that make a political community.
This work concerns is to emphasize the importance of relativistic thinking especially considering positive norms, not as a simple submission to the desire of others, but as a respect for our democratic system and the separation of powers. The aim of this work is not to make a judgment of value about the content of specific laws – in a non-axiological sens – but to try to understand how some rules, even socially considered as " unjust " , may be valid in a legal system. Addressing the theme of justice and the norm validity of law, which is fundamental to the understanding of the problem, this text finds its foundation in the guidelines drawn up by Hans Kelsen in his legal positivism grounded in skepticism and relativism.
JUSTICE AS THE END VALUE OF LAW
There has always been a great debate on what role law should fulfill in every society –while believers of the Natural Law on the one hand, insist that every law must appeal to good conscience in order to be recognizable, the Marxists are of the view that law is nothing but an instrument of oppression in the hands of the sovereign. The bottom-line of these arguments is that of a deep-seated yearn for justice. For instance, believers of the Marxist School of thought would have been more at peace if they have seen law as going to the greater extent of achieving and guaranteeing certain freedoms. While this is important, it is acutely imperative to draw out a benchmark –justice. Therefore using justice as the index of every law, has law served any purpose, at all, for every Tom, Dick and Harry of every society? This research sets out on a particular mission: that of first, understanding what law actually is, then attaching to it the value of justice in order to create out a phenomenon, and then proceeding to critically examine, compare and analyze the laws of some select societies (both indigenous and modern) using the index of justice as a guide. In the end, it is the hope of this researcher that, notwithstanding the variety in the laws that have existed and still exist during the different evolutionary stages of human societies, the common, universal language which they all reflect –that of justice – has been deduced.
The Quest for Retributive Justice
2011
The war crimes committed between 1992 and 1995 in Bosnia-Herzegovina have mainly been under the jurisdiction of the legal systems set up by the international community. To solve the atrocities of the past, institutions like the ICTY and the WCC were set up. But to this day there is estimated to be thousands of direct perpetrators still walking free in and around Bosnia-Herzegovina. The purpose of this study is to see exactly how this search for justice is progressing and what is preventing it to operate more efficiently sixteen years after the signing of the Dayton Peace Agreement. By analyzing the main international strategies in dealing with retributive justice, namely the ICTY in The Hague and the WCC in Sarajevo, I conclude that there have been consequences to the internal legal structure of Bosnia-Herzegovina and a general negative perception among the victims of the war on the attributes of retributive justice.
2018
The EU system for the protection of fundamental rights had been developing since 1969 The justification of punishment is a difficult problem. The paper attempts to examine retributivism in the normative perspective and to penetrate the structure of the fundamental premises and theses of retributivism. Retributivism assumes that punishment is just, in the broad understanding of the term, while in reality punishment is not just; the model of retributive punishment is contrafactual, which is evident above all in the problem of punishing the innocent. A proper modification of retributivism's normative premises (i.e. how and why people ought to be punished, etc.) consists in seeing these premises not as unconditionally binding directives but as optimization rules, a kind of prima facie duty. These are mainly the ethical duties of the state considered from the point of view of criminal policy. In effect, it is possible to formulate a non-fundamentalist (non-idealistic) variant of retributivism -better corresponding to social reality. The core of the paper consists in outlining such a concept. The paper has been primarily inspired by the ideas of W.D. Ross and R. Alexy..