Law is a system of legal rules and legal principles. The distinction between them is a relative one. Always such definite major and minor premises are to be formed that the case can be subsumed under the rule and a conclusion, which includes the decision, can be drawn. This applies to legal principles that are operationalized by legal rules as well as to statutory forms of legal rules, which are often open as to their meaning and/or contain definitions that comprise elements of principles. The basic characteristic of legal principles is that they are value measures directing the definition of legal rules as to their contents, the understanding of the rules, and the manner of their application. Legal principles aim at a goal, have weight, and define the scope of the meaning within which the legal rules move. The operationalization of legal principles is the ratio decidendi that the court has to achieve in order to be able to decide in a concrete case. Legal principles live through the rules that are the reasons for the decision in a concrete case. New cases can be solved by a new operationalization of legal principles or by analogous application of precedents if the new cases, in their essential elements, correspond to cases that have already been decided.
COBISS.SI-ID: 13583185
The paper on the extent and limits of the formal and substantive influence of the EU legal order on the legal orders of its Members States was published in a monograph prepared as a project of the European Liberal Forum and the Telders Foundation. In the paper, the author examines the relationship between the EU law or the EU legal order and national legislation or legal order of individual member states.
COBISS.SI-ID: 12884817
The theory of legal argumentation is dealing with the decision-making process in legal cases. Its basic disposition is the claim, that at the beginning of the process, one is only familiar with its starting point. The further process is a matter of one’s decision. The theory of legal argumentation is fully aware of the integrity of legal decision-making, which is subject to analysis and further illumination in the respective work. Rational legal argumentation requires the equality of legal opportunity for all agents and the availability and recognition of every legal argument that arises within the dialogue and has to be further scrutinized. If there are no substantial arguments are presented, one has to act in accordance with the established practice.
COBISS.SI-ID: 268983552
The author understands the notion of law as a system of fully functioning legal principles and legal rules that, within the boundaries of regularity, govern relevant external behavior and conduct of individuals in a state-organized society. The traditional issues being dealt in this fundamental of legal theory are principal legal methods, branches of legal science, the law and the state, the legal rule and legal relation, the normative legal act, legal sources, legal voids, the use of legal acts, the systematization of law, its values and views on the nature of the law. The fifth edition also includes an extensive section on fundamental legal traditions.
COBISS.SI-ID: 281840384
In this paper, the issue of when we can justifiably start talking about the presence of Slovene in historical legal contexts is presented as an example of an interdisciplinary topic. Two usual presumptions among other disciplines about law are explained as the main conceptual obstacles: first, that Žall lawis in the codeŽ, implying that legal texts are the only source for the analysis of legal language, and second, that law has been from time immemorial created only by the state. It is shown that a crucial role in the development and preservation of the key Slovene legal terms can be attributed to the court gatherings of the autonomous medieval communities, in the context of prevailing orality, and that what can be credited with a similar role nowadays is the main hearing in the scope of court proceedings.
COBISS.SI-ID: 12047697
In the first part of the article, the value of the old vernacular semantically stable legal lexica as the historical source for studying the realia with which it is named is described and illustrated with the example of the oldest recordings of the lexical items pertaining to the word family soditi, gathered systematically from the oldest sources in Slovene (the Freising Manuscripts, Middle Age manuscripts in Slovene, Dalmatin's Bible and from the old multilingual dictionaries that included Slovene). The main research question, i.e. how it was at all possible for some of the oldest vernacular legal lexis to have remained relatively semantically stable until today, is elaborated in the second part. In continuation, suggestions for the oldest reconstructed vernacular namings for paradigmatic legal acts and roles in a court procedure are introduced in diagrammatic form. Two conclusions are drawn. First, the court gatherings of the medieval and early modern autonomous communities are to be identified as the stable semantic environment for the construction of legally relevant meanings, within which, and thanks to the overwhelmingly oral communication (embedded in what some scholars call performative law), some of the old legally relevant lexica could even have undergone a process of terminologisation. Second, and still in the form of a hypothesis for future interdisciplinary research, it is concluded that from among different legally relevant vernacular lexica, it has been those performatives and constitutives that have remained semantically stable, which in their concurrent role as speech and legal acts were inherent to oral legal communication and which are indispensable in any oral court procedure or forming of an oral agreement even today.
COBISS.SI-ID: 8996433
Paragraph 418 of the ABGB prescribes the legal consequences of a situation where someone has built on the land of another with his own materials without the knowledge or consent of the proprietor, and stipulates as the fundamental implication that the building devolves to the owner of the land. In general terms, the same principle is also laid down in Paragraph 297. It is clearly evident that both norms reflect the idea of the Roman legal maxim superficies solo cedit, which is one of the elementary principles of property law in nearly all European legal systems (the article presents examples of the German, French, Italian, Swiss and Slovenian legal regulations). The principle dates back to the period of Roman classical law. In Europe it was broadly recepted in the 14th century. It left a considerable mark on the common law system too. The article presents an example of reception, namely two provisions from the Statute of the Commune of Koper (1423). The first provision shows that in Koper the superficies solo cedit principle was expressly introduced based on the authority of Roman law and that it was most likely already enforced towards the end of the 14th century. The other provision on fruit which has fallen on the land of another owner illustrates how application of the abovementioned principle yielded a solution in complete contrast to Roman law. Stemming from a comparison of the modern Slovenian legal regulation and the regulation according to the ABGB, the article ends with a finding that after the superficies solo cedit principle was reintroduced to Slovenian property law the issue of the question of compensation in the case of building on another person’s land has been left resolved to a lesser extent than under the ABGB.
COBISS.SI-ID: 13190225
The Civil Procedure section of the International Encyclopaedia of Laws (IEL) provide in-depth descriptions and analysis of numerous domestic systems, guiding lawyers of differing legal backgrounds through foreign proceedings with which they and their clients may be confronted. National monographs describe the main features of each country’s judicial organization, the rules governing the jurisdiction of the courts, the actual court proceedings, the rules of evidence, the principles governing preliminary seizure and the enforcement of judgments, and some elements of national arbitration. The monography dedicated to the Slovenian civil procedure thereby also consists of an in-depth description and analysis of particular proceedings, the regime on actions and claims and legal aid and legal costs.
COBISS.SI-ID: 13980497
Legal translation knows all the regular cliffs of translation as “negotiation” between the words and their real meaning but adds two additional reefs thereto, a specific legal terminology and the limited translatability of legal concepts among the varied legal orders. In the search for the appropriate term, an ideal legal translator would thus always have a good command of the legal order in both linguistic systems, not just of the words and their meaning but also of the conceptual differences, so as to enable a personal (creative) decision, often required, on the choice of the proper term. How are we to judge the accuracy of translation or the interlingual transfer of meaning in such cases? Is it even proper to talk here of an objective “correctness” of the chosen term or does the (substantive) authority of the translated legal term sometimes primarily depend on the (formal) authority of the translator? The difficulties inherent in such legal translation are clearly evidenced in the experience of the European Union and its multilingual legal order, where substantive disparities between the formally equivalent linguistic versions of the European legal texts often arise and need to be authoritatively resolved in the interest of the rule of law. This paper does not purport to offer a holy grail of the “right answers” to such questions but attempts to shed some light on the conundrum.
COBISS.SI-ID: 10447185
This paper revisits the delicate relation between law and language, with language inevitable serving as the vehicle of legal deliberations and pronouncements, and in particular their seemingly irreconcilable qualities: while law is predicated on the concept of the rule of law (or Rechtsstaat) which in turn calls for a clear and predictable system of norms ensuring equal treatment, language is often indeterminate or ambiguous, the meaning of words unclear or uncertain. Is language even properly equipped to perform the role asked of it by law? This question is addressed by outlining and analysing the path traversed from the open-ended vagueness of linguistic terms to the uncompromising confines of their legal interpretation, both in the course of adopting legislation and in particular in the course of adopting judicial pronouncements on the meaning of linguistic terms employed.
COBISS.SI-ID: 53641314