Praetor peregrini as an epistemological model of contemporary comparative lawyer (toward a question about comparison as a philosophical thinking of legal postmetaphysic)
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2016, Vol 27, Issue
Abstract
Contemporary jurisprudence has appeared before opportunity and necessity to afford itself as a sphere of independent methodological thinking, i.e. awareness itself as a project law-as-philosophy. Justifications of logic of lawmaking are one of the most important ques- tions within such project. Content of reflection of philosophical nature of law are establish of algorithm of metaphysic overcoming. Discourse of philosophy-methodological originality of jurisprudence is demand rethinking of jurisprudence’ own logic. Formality of logical impli- cation doesn’t ensure legal assertions’ logicality. Legal logic doesn’t separate from discourse: language and logic are inseparable and thereby law gets logical language. Law-as-philoso- phy discourse is deconstruction of legal logic. Possibilities of displacement of concept tertium comparationis semantic content as tran- sition from its ontological to epistemological interpretation are showing in the article. Ones transitions postulated as gnoseological framework of overcoming of metaphysics. Forming of postmetaphysical legal thinking as independent philosophy discourse supposes recognition of legal comparison as legal logic. Such logic are proposes to consider practical syllogism of legal comparison circular (postmetaphysic) construction. Deconstruction of formal logic is discourse of legal epistemology. Circle construction of legal comparison is instrument of men- tioned discourse. Legal comparison logic is logic of lawmaking. Therefore significance of contemporary comparative lawyer is similar to praetor peregrini role for the creations of Roman law.
Authors and Affiliations
Oleksandr Tkachenko
Keywords
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