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The Rule of Law and the Challenges to Jurisprudence

Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012

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Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka

Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
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The Subject Matter of Jurisprudence

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Goran Dajović

Introduction

The topic of this article is the subject matter of jurisprudence, that is to say, the determination of the phenomenon that occupies legal theorists. I will only try to list a few, in my opinion, indisputable theses about the subject of jurisprudence, describe them and draw some methodological corollaries from them. I do not have any illusion that this would dissipate all dilemmas, but I believe that it is important at least to strive to do this. Why is it so?

There are at least three reasons to clarify this topic, namely to delimit the subject of jurisprudence correctly. The first one is professional: resolving this issue is a necessary condition for the existence of jurisprudence as a legal discipline. It is an old-fashioned scholarly convention that every legal discipline is determined by two elements. The first one is the subject and the second is the method of the discipline. For example, sociology of law is usually characterised by the method of empirical observation and its main subject, the relation between law and society. Criminal law has positively valid norms about criminal offences and punishments as its subject and the appropriate method for investigating such a subject is exegesis. According to this convention, it seems a pressing task for jurisprudents to determine the subject of their discipline.

The second argument for talking about the subject is practical. Namely, this question becomes important if we bear in mind...

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