While concepts of time underlie many of the central projects of feminist theory, law and justice, and the natural sciences as well as ideas about political struggle, temporality is rarely their direct object of analysis. In her essays brought together in this volume, Elizabeth Grosz moves questions about time and duration to the fore in order to explore how rethinking temporality might transform and revitalize key scholarly and political projects. Dealing with time in relation to topics ranging from female sexuality to conceptions of power to understandings of cultural studies, these essays reveal Grosz's advocacy of a politics of invention, a politics that cannot be mapped out in advance--one that is more invested in processes than in results. Grosz's reflections on how rethinking time might generate new understandings of nature, culture, subjectivity, and politics are wide-ranging. She moves from a compelling argument that Charles Darwin's notion of biological and cultural evolution can potentially benefit feminist, queer, and antiracist agendas to an exploration of modern jurisprudence's reliance on the sense that the future is always beyond reach. She examines Henri Bergson's philosophy of duration in light of the writings of Gilles Deleuze, Maurice Merleau-Ponty, and William James, and she discusses issues of sexual difference, identity, pleasure, and desire in relation to the thought of Friedrich Nietzsche, Michel Foucault, Deleuze, and Luce Irigaray. Together, these essays demonstrate the broad scope and applicability of Grosz's thinking about time as an under-theorized but uniquely productive force.
Introduction. The article is devoted to the study of the methodological foundations of legal consciousness in the context of modern development. In the context of the transformation of the legal system of Ukraine, European integration, the formation of European values, and the strengthening of the role of civil society institutions, there is a need for scientific substantiation of the methodological principles of the study of legal consciousness, which form the basis for the scientific analysis of this phenomenon as a socio-legal phenomenon. Currently, legal consciousness is an important factor in the implementation of law and reveals the internal attitude of a person, social groups, and society as a whole to law, legality, and justice. The methodological principles of the study of legal consciousness include a set of approaches, principles, methods, and tools that ensure its comprehensive, systematic, and objective study. The aim of the article. The purpose of the article is to determine the methodological principles of researching legal consciousness in the context of modern development. Results. Among the main philosophical principles of the study of legal consciousness, it is worth mentioning, first of all, the dialectical approach, which considers legal consciousness as a dynamic, historically changing phenomenon that develops in interaction with the legal system and society. Along with the dialectical approach, historical, anthropological, axiological (value) and other approaches also play an important role in the philosophical understanding of legal consciousness. In particular, the historical approach takes into account changes in legal consciousness in a historical context (for example, the transformation of legal consciousness in the conditions of a post-totalitarian society); the anthropological approach emphasizes a person as the main subject of legal consciousness, with his internal beliefs, needs, motivation; the value or axiological approach allows us to analyze legal consciousness as a sphere that reflects the idea of justice, freedom, dignity, duty. The complexity and multifaceted nature of the phenomenon of legal consciousness necessitates interdisciplinary research of this phenomenon in various fields of scientific knowledge. That is why legal consciousness is a subject of scientific research not only in the field of legal theory, but also in philosophy, psychology, sociology and other sciences. An interdisciplinary approach ensures the integrity and depth of the study of legal consciousness. It is through the integration of methods of jurisprudence, philosophy, sociology, psychology and other sciences that it is possible not only to theoretically comprehend this phenomenon, but also to develop effective mechanisms for legal education, the formation of legal culture and the strengthening of the rule of law in society. In the study of legal consciousness, an important role is also played by the functional approach, the application of which makes it possible to isolate the functions of this legal phenomenon. In the legal literature, there are various approaches to determining the functions of legal consciousness, and their study requires reference to works on the general theory of law, which analyze the essence of functions and their role in regulating social relations. In addition, within the framework of modern jurisprudence, more and more attention is also paid to the value (axiological) approach to understanding legal consciousness. This approach is based on the recognition that legal consciousness is not only a reflection of knowledge about law or legal norms, but primarily an evaluative attitude of a person towards law as a social institution, its legitimacy, justice and effectiveness. Conclusions. Methodological principles of legal consciousness research are a complex multi-level system of approaches and methods that provides a comprehensive understanding of this multifaceted phenomenon. The use of philosophical, general scientific, special and interdisciplinary methods makes it possible to identify both the patterns of legal consciousness formation and the factors that contribute to or hinder its development. Such a comprehensive approach opens up prospects for further applied research aimed at improving legal culture in Ukrainian society, and also provides an opportunity to understand more deeply how citizens perceive and interpret legal norms and what social, cultural and psychological factors influence the formation of legal consciousness in the conditions of modern dynamic transformations. Legal awareness is the result of the development of a number of factors, which necessitates the integration of the appropriate methodological tools of individual scientific areas of modern socio-humanitarian doctrine as a whole, in particular, philosophy and theory of state and law, sociology, psychology, cultural studies, etc. Such methodological integration helps to understand not only the peculiarities of the perception and implementation of legal norms in various socio-cultural environments, but also to identify internal or personal factors in the formation and development of legal awareness. Keywords: legal consciousness, methodology, interdisciplinary approach, methods and principles of scientific knowledge, legal system, human rights.
En Argentina distintos marcos jurídicos y políticas sanitarias, enmarcadas en la Convención de los Derechos del Niños, reconocen el derecho a la salud de las y los adolescentes. En este artículo se analizan los sentidos y prácticas relativos a la atención de la salud en la adolescencia desde las perspectivas de las y los trabajadores de la salud de la red estatal de servicios de salud, en la ciudad de Bahía Blanca; se compara la información con los lineamientos presentes en las políticas de salud, indagando convergencias y divergencias entre las mismas. Se utilizaron técnicas cualitativas: entrevistas semi-estructuradas a médicas; observación en servicios de salud y en una serie de talleres en los que participaron otros trabajadores de la salud, técnicas de documentación. Se encuentran sentidos antagónicos entre el personal sanitario y las políticas de salud en torno a la autonomía progresiva, y entre los mismos trabajadores de la salud respecto de la participación de las y los adolescentes en la toma de decisiones en salud. Las y los interlocutores clave refieren a los lugares poco apropiados o no exclusivos para la atención de adolescentes, los horarios de atención inapropiados e insuficientes, y los prejuicios de las y los trabajadores de la salud sobre las y los adolescentes y los problemas de salud como factores que dificultan el acceso a la atención. Se propone que los marcos de sentido construidos desde la medicina acerca de las/os adolescentes, confronta con los marcos jurídicos y, condiciona la posibilidad de acceder a una atención satisfactoria en el ámbito de la salud.
Norms and obligations are central components of many religious traditions. Yet they have often been neglected as objects of reflection in the study of religion. Moreover, despite the centrality of mitzvah (commandment) in Judaism, halakhah (Jewish law) has only recently become a central topic in modern Jewish thought. This book rectifies these deficiencies while forging new connections between reflection on religion and modern Jewish thought by offering a critique of halakhic reason. It offers fresh assessments of twentieth-century Jewish thinkers as both deeply engaged in reason-giving about the commandments and yet simultaneously denying the normativity of practical reason. Against them, it contends that, when reasons are understood as generated by the structure of agency and the relations among subjects, they are the source of normativity. This constructivist theory of practical reason provides a basis for conceptions of authority, norms, and obligations that are applicable even to God’s commands. Divine commandments too operate within a “space of reasons” and so are constrained by rationality and morality. Whether commandments are justified and how they are implemented depends on the reasons that can be offered for and against them by human agents. Reasons and practices of reason-giving are thus central to religious thought and life. Critique of Halakhic Reason reveals the ubiquity of reasons within religious practice. It examines the reasoning operative in the justification and jurisprudence of the Jewish commandments and develops its consequences for theology, the study and philosophy of religion, as well as for moral, legal, and political philosophy.
The research article investigates, in an evolutionary key, the theme of the protection of minors in the care relationship and in the adoption of the therapeutic choices that concern them. We proceed to a re-reading of the discipline on informed consent using the lens of the discernment ability of the minor person and, therefore, of the so-called best interest of the child, seeking a reasonable balance between the various interests involved.
Jurisprudence. Philosophy and theory of law, Political theory
La Ley 4/23, de 28 de febrero, para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI, consagra como derecho fundamental la autodeterminación de sexo, también para los menores de edad. Estos, al objeto de facilitar su transición de sexo, suelen comenzar el proceso recibiendo bloqueadores de la pubertad y, posteriormente, hormonas cruzadas. El artículo trata de analizar si, en este tema, la nueva Ley redunda en el interés superior del menor y, en definitiva, en el respeto a su dignidad.
The relevance of the topic of this paper is due to the insufficient study of the problems of inclusive legal positivism in the modern philosophy of law. The problem of substantiating the thesis of the inclusion of morality in law on the basis of rational argumentation of scientists and legal practice data considered in the paper allows an innovative analysis of basic legal concepts. The subject of the research is to analyze the methods of moral, ethical and legal argumentation in the works of representatives of inclusive legal positivism. The purpose of the work is to theoretically reconstruct the essence of the debate between inclusive and exclusive legal positivism. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of inclusive legal positivism, set out in the scientific works of Will Waluchow and Kenneth Himma, the need to rethink traditional ideas about the theory of legal positivism. The research methods used in the paper is the methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions). The main conclusions of the paper are to reveal the key arguments of the concept of inclusive legal positivism. It is proved that from the point of view of this concept, the law has moral grounds, and judges in some cases use moral reasoning when making court decisions.
INTRODUCTION. This publication follows up the well-aimed discussion recently initiated by the journal in 2017-2019 [Abashidze, 2017; Nefedov, 2019] and to a certain extent continued in 2020 [Vylegzhanin, Potier, Torkunova, 2020], regarding one of the "pillar problems" for the legal theory pertaining to international law, which concerns its ‘principles’.The subject-matter of the study is determined by a number of circumstances that are atypical for any field of any science, when there is a variety of terms differed not only in name, but also in content, which relate to the cornerstones of relevant field or section of a particular branch of knowledge. As far as the international law science, this situation has been due to the availability of a wide range of different designations concerning its principles, and resulting the need to thoroughly peruse the same. Due to the above, genesis, historical evolution, nature, functional destination and role of the principles in the theory and practice of international law, including its basic principles as its normative grounds, which belong to the entire system of international law, should naturally be under thorough consideration. They seem to constitute the most sensibly weak point in the modern theory of international law due to obviously "multicolored" conceptual and terminological spectrum. It is important that the list of terms forwarded in relation to the principles is growing from day by day, and new ones are being added to the designations as "set-forth" to date. Thus, the afore-referred list encompassing "basic principles" and "generally recognized principles and norms of international law", "principles of general international law", "general principles of co-operation" (Article 11, para 1, of the UN Charter) in a particular field, as well as "general principles of law", "general principles of law recognized by civilized nations", etc., has recently been supplemented with "general legal principles", "basis principles" and "general principles of international law".The impressive range of the above concepts that are somehow found in the scholars’ writings and practice of international law frequently implicates the contradictory interpretations and unavoidable collisions in the course of conceiving the sense of and applying the norms, which accordingly require reducing ambiguities and therefore ensuring better regulation. To achieve the same, the only one thing may be effective – that is by way of revealing the fundamental properties of respective phenomena.Increase of negative assessment of current legal regulation of international relationships happening not only in literature, which the occurrences are quite frequent, evidences that the topics related to the principles of international law, are, firstly, not only fundamental issues to qualify the substantive component of the theory of international law, since it is directly n with the core matters of legal science that studies the captured system of law, but also stand as extremely acute point because of the continuous attacks on the effectiveness of international law as such (to the extent of complete denial of the same even in public statements made by official spokesmen of States), – secondly. Resultant from this, the growing skepticism about the effectiveness of principles gives raise mistrust in international law in whole. Therefore, the major steps required towards achieving the most important goal in the matter of raising high the credibility of the international law shall be deemed as follow: to conceive the essence of the concept of "principle"; identify and differentiate the phenomena corresponding to individual positions in the afore-referred list; construe the typology thereof, as well as reveal the relationship between some of them. A number of the said aspects are subject to be examined herein, while the rest of them should be given specifically a place within the scope of another publication.MATERIALS AND METHODS. The analysis undertaken in the article is based on normative and doctrinal materials that reflect the positive international law and law enforcement acts, other documents, including reports and research presentations of the UN International Law Commission, judicial decisions or advisory opinions of the International Court of Justice and other international judicial institutions, acts of international organizations, as well as the teachings of the most highly qualified publicists and practitioners in the field of international law and its history, which relate to the topic of this publication. The research enjoys both general and specific principles and methods of analysis: dialectical materialism, structural and system approaches, formal logics, deduction and induction, comparative law, historical and retrospective approach. The latter one is particularly fruitful for study of genesis and essence of the concept "principle of law", legal nature of principles in international law.RESEARCH RESULTS. The essay purports to reveal the essence of various designations construed on the basis of the element "principles", or similar phenomena in the aspect of international law. In the course of researchaiming the system-forming role of the basic principles of the IL and the comparative analysis thereof with jus cogens ("peremptory norms of general international law»,) the findings are that there is no reason for wide international practice to ignore the term and the concept of "basic principles" in cases when approaching to the concept of "peremptory norms of general international law" (jus cogens), since they do not substantially differ in a number of parameters. In both categories, sometimes it seems to appear a discrepancy or incomplete compliance with the criterion of "peremptory norms of general international law" (e.g. partial "opinio juris cogentis" / "non-derogability"), especially from formal-dogmatic stand, viz. with no comprehensive view on full legal scope of a rule of law. The totality of the theses put forward to solve the listed and other related problems on the basis of the approach laid down in the study from a theoretical point of view, as a whole, seems to form a new vector in legal theory, not only domestic, but also international, due to the lack of full-fledged, detailed research on the subject with such a discourse on a global scale.DISCUSSION AND CONCLUSIONS. "Principles of international law", including the initial point, i.e. the concept of "basic principles", as well as a number of other notions connected with them, are subject to examination in the article, both as a phenomenon of positive international law and as a category of legal science (that one of international law). For Russian science of international law, the concept of "principles" / "basic principles of international law", securing the integrity and entirety of the IL system, performs the role of one of its major categories. The differences between "concept" and "category" in the tools of the theory of international law are determined by the postulates substantiated by philosophy. At the same time, in part of concepts and terminology, the international legal theory is characterized by a certain gap in the positions forwarded by domestic and Western jurisprudence. Conceptual approaches to the "principles" ("basic principles") and the resulting discrepancies in opinion quite radically differ, whereas to the term "principles" it is often attributed rather non-normative, ideological or teleological significance, while the functions of the norms having hierarchically superiority over other rules in international law, are allocated to the category of "peremptory norms of general international law (jus cogens)".
The article reveals the reasons for the lack of coordination functions and horizontal links in the
apparatus of public authorities in the Republic of Moldova. The object of the research is a complex of legal and non-legal relations, multiparty, which arise in the initial stages of the formation of unstable organizational structures, linear-functional, of the central public administration bodies. The aim of this paper is to develop methods for streamlining the relationships and structures of the functional matrix at all levels of governance and self-government. Ways to weaken the multiparty factor are proposed by
developing self-regulatory organizations of entrepreneurs and delegating them to state functions. The relevance of the topic is due to the fact that the lack of flexible links and coordination structures between the governing bodies, in the conditions of constant conflicts between party leaders, can lead to problems that call into question the very existence of the state. The author also argues that concrete measures need to be taken in order to combat imperfect legal rules in the form of tightening control over departmental regulation and establishing a permanent review of legislation. Based on the author’s experience in using
the various questionnaires and surveys in his monographs, it is proposed, in drafting each new bill, to conduct a content analysis of current regulatory acts in the relevant field or industry and, from a scientific point of view, reach a final decision on whether such a regulatory act can be adopted. It is proposed to formulate at the state level and include in the legislation the various strategic objectives of promoting cooperation in the field of scientific and technological progress and small business.
Private international law. Conflict of laws, Jurisprudence. Philosophy and theory of law
Investigaremos la relación entre el diagnóstico en la atención de la Salud Mental y la clasificación de la homosexualidad como enfermedad o trastorno mental con el fin de analizar que en lo que a las sexualidades no hegemónicas respecta, el diagnóstico no supone ser únicamente un conocimiento acabado del fenómeno que pretende investigar, sino que funciona como un procedimiento performativo que produce el mismo fenómeno que busca delimitar. Para ello, consideraremos los “Principios para la protección de los enfermos mentales” adoptados por la Asamblea General de las Naciones Unidas el 17/12/1991, así como los sistemas internacionalmente vigentes de Clasificación en Salud Mental. Nuestra hipótesis de trabajo descansa también en las ideas sobre la performatividad desarrolladas por Judith Butler.
Jurisprudence. Philosophy and theory of law, Medical philosophy. Medical ethics
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Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the nature of law that identifies law’s essential features, takes the views of its participants seriously, and prescinds from moral judgment. Twenty years on, the debate on this question persists and, despite increasing insight and sophistication, some wonder whether we have reached a dead end. To understand this dispute, and general jurisprudence’s methodological cul-de-sac, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new--demonstrating the usefulness of its approach by exploring the promise and limits of Dickson's work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural law tradition of legal theorizing, can better deliver on positivism's promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law's moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.
Emilia Soledad Bonilla Manotoa, María Victoria Vergara Caicedo, Camila Santamaría Viteri
Este estudio analiza el elemento de la antijuridicidad en las publicaciones en redes sociales, como hechos que ocasionan una afectación a la honra y al buen nombre, y consecuentemente podrían causar daño moral. Inicialmente se distingue el hecho antijurídico del hecho ilícito, como elemento necesario para que se configure el daño. El discurso o la opinión analizada deben cumplir con requisitos determinados por estándares internacionales de derechos humanos en materia de libertad de expresión, para determinar si el hecho es antijurídico o no. En este caso el estándar consiste en un test tripartito y la perspectiva sistémica digital para así verificar la existencia de un hecho antijurídico que constituya un daño moral a resarcir. De igual manera se diferencia brevemente la naturaleza entre las publicaciones originadas por su autor y aquellas en las que quien realiza el acto solamente comparte el contenido creado por una tercera persona. En este trabajo se evidencia la falta de aplicación de estándares de derechos humanos en la calificación del daño, y sus consecuencias perniciosas en la administración de justicia en el Ecuador. Con este análisis el juzgador podrá determinar la naturaleza del acto para poder condenar al demandado a reparar daños o desechar la demanda que alega los mismos.
Law, Law in general. Comparative and uniform law. Jurisprudence
One of the issues of Islamic philosophy, which was the result of some theological debates between scholars of Islamic theology, and was also concerned with the ontological issues of philosophers, is "thingness of non –Existent" and basically the distinction between the Existing and the Thing. The Mu'tazilites, with the motive of correction of the eternal divine knowledge to Possibilities and the incorrect impression of Platonist-Aristotelian doctrines were believed in "thingness of non –Existent". Regardless of the examination of positive and negative evidences, the analytical and historical view of this issue reveals the existence of a cognitive divide not about words but also in understanding the conceptual basis of these meanings among the Mu'tazilites, mystics, and philosophers and hence the subject of this these two concepts are very different both in terms of structure and content. This article shows that the neglect of the reality of existence and the essential look at being- being filled with objects that are distinct from one another - the origin of the creation of two different images of the Mu'tazilites and philosophers to the issue of extinction, the supervenience of the existence on essence, the type of relationship of existence and essence, and Also, divine knowledge and deeds are related to the possible beings.
Philosophy. Psychology. Religion, Jurisprudence. Philosophy and theory of law