Privatisation and the Creation of a Market-Based Legal System

2002 ◽  
Author(s):  
Bahaa Ali El-Dean
Keyword(s):  
Legal System ◽  
The Creation

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

The International Space Station

2019 ◽  
pp. 96-113
Author(s):  
Sarah Katharina Germann
Keyword(s):  
International Space Station ◽  
Legal System ◽  
Space Station ◽  
Legal Framework ◽  
Point Of View ◽  
International Space ◽  
Space Law ◽  
The Creation ◽  
Shed Light

The International Space Station is certainly one of the most astounding achievements of humankind in space. Especially from a legal point of view, the creation of the Intergovernmental Agreement (IGA) and its sub-instruments specifically for the ISS was a major success: the IGA was the first grand-scale multi-national legally binding space-related treaty drafted, ratified, and implemented by the major space faring nations since the drafting of the five UN Space Treaties roughly 20 years before. And still today, the legal framework of the ISS is a stand-alone legal system which can serve as model for other missions, as it refines and develops in an innovative way the rules laid out in the five UN Space Treaties and at the same time manages to coordinate and organize management, utilization, and financing between all the partners. This chapter intends to shed light on the complex legal system governing the ISS and to point out the novelties of the IGA-Structure in comparison with the conventional body of international space law.

scholarly journals South Africa: A Diceyan Rechtsstaat?

2012 ◽  
Vol 57 (4) ◽  
pp. 721-747 ◽  
Author(s):  
Francois Venter
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Legal System ◽  
Judicial Process ◽  
Constitutional Design ◽  
Liberal Democratic ◽  
Constitutional State ◽  
The Creation

South Africa’s transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German. Adopted in 1993, the first constitution introduced the notion of the “constitutional state” but being only a transitional document, it provided for the creation of a “final” constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the “constitutional state”, including instead the expression “rule of law”. Since the constitutional principles laid down in 1993 referred to neither the German “Rechtsstaat”, nor Diceyan “rule of law”, the replacement of the former term by the latter was permissible. The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as “comparison by global assimilation”.

scholarly journals Merger and division nullity in the Romanian legal system

2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Bejan Felicia
Keyword(s):  
Legal System ◽  
Subject Matter ◽  
Legal Framework ◽  
Third Parties ◽  
European Directives ◽  
Legal Norms ◽  
Cross Border ◽  
The Subject ◽  
The Creation ◽  
Juridical Acts

As a consequence of the transposition of european Directives regarding the merger, division, and cross-border mergers, the Romanian legal system established a special legal framework with regard to the sanction of nullity for such juridical acts. The peculiarities of internal and cross-border reorganisation operations, and the imperative of protecting the interests of third parties, associates, and the companies involved led to the creation of a derogatory legal system on the matter. An analysis of both theoretical and practical perspectives of the subject matter may result in a useful instrument for the application of incidental legal norms, or every time restructuring juridical acts contravene the legal norms. 

scholarly journals Precedent Precedent in the Russian legal system contemporarily

2017 ◽  
Vol 33 (3) ◽  
Author(s):  
Mai Văn Thắng
Keyword(s):  
Legal System ◽  
Federal Court ◽  
Stare Decisis ◽  
Law System ◽  
Legal Principles ◽  
Legal Documents ◽  
Lower Courts ◽  
The Common ◽  
The Creation ◽  
The Guardian

The Article focus on analyzing the fundamental reasons fostering the creation and progress, the nature, the position and value of precedent as a source of law within the Russian legal system contemporarily. Accordingly, the construction of a state in which the rule of law, the democracy, the integration, the recognized of fundamental legal principles such as the court must not deny resolving cases, the guardian of the court to the basic human rights as well as citizen rights, the judges do not rely solely on the laws but also on their conscience to accomplish the mission of protection of justice, the existence of a  constitutional federal court, have been considered the main reasons promoting the creation of caselaw in Russia in reality at the period after Soviet. However, there is not any official legal documents governing precedent in Russia so far. Unlike the "stare decisis" principle in the Common law system, precedent in Russia only plays an inferior role which is a supplement source considered legal interpreting in the system.  Precedents in Russia are also not granted an official authorization as well as not selected or published, instead of that, case laws are the opinions, decisions from the superior courts which are believed to be trustworthy, outstanding, valuable and appropriate. These case laws would be cited in the lower courts although some of them which were granted by Constitution Federal Court may not follow previously mentioned principle because of their own binding rules. The opinions, legal reasonings considered the content of the precedents are not the laws.

scholarly journals CONSIDERAÇÕES SOBRE A INSTANTANEIDADE DOS SISTEMAS JURÍDICOS E SOBRE A ANTERIORIDADE TRIBUTÁRIA A PARTIR DO ITCMD PARANAENSE CONSIDERATIONS ON THE INSTANTANEITY OF THE LEGAL SYSTEMS AND ON THE TAX ANTERIORITY FROM THE ITCMD OF PARANÁ

2018 ◽  
Vol 23 (1) ◽  
pp. 107
Author(s):  
Maurício Dalri Timm do Valle ◽  
Rosaldo Trevisan ◽  
Rosaldo Trevisan
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Systems ◽  
Constitutional Principle ◽  
Federal Constitution ◽  
Distrito Federal ◽  
The Creation

A Constituição Federal brasileira de 1988 autorizou os Estados e o Distrito Federal a instituírem impostos sobre transmissão causa mortis e doação, de quaisquer bens e direitos (ITCMD), tendo o Estado do Paraná levado a cabo a tarefa, inicialmente, por meio da Lei n. 8.927, ainda em 1988. Contudo, tal lei foi revogada em 2015, objetivando o presente estudo a avaliar as consequências da revogação, à luz da previsão constitucional relativa à anterioridade e da noção de sistema jurídico, e sua instantaneidade. A questão ganha relevância pelo fato de a revogação ter operado imediatamente, ao passo que criação de um novo ITCMD paranaense demandou respeito ao princípio da constitucional da anterioridade, garantidor da segurança jurídica, somente produzindo efeito a partir de 1º de janeiro de 2016. Brazilian Federal Constitution of 1988 authorized States and Federal Disctrict to institute taxes on causa mortis and donation of any goods and rights (ITCMD), and the State of Parana carried out the task, initially, through Law n. 8.927, still in 1988. However, this law was repealed in 2015, and the present study seeks to evaluate the consequences of revocation, in light of the constitutional prediction regarding anteriority, and the notion of legal system, and its instantaneousness. The issue becomes relevant because the revocation has operated immediately, whereas the creation of a new ITCMD of Parana demanded respect to the constitutional principle of anteriority, that assure predictability, only producing effect at January 1, 2016.

Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?

2004 ◽  
Vol 5 (1) ◽  
pp. 47-64 ◽  
Author(s):  
Stefan Kirchner
Keyword(s):  
United States ◽  
International Law ◽  
Free Trade ◽  
European Community ◽  
Legal System ◽  
The United States ◽  
Yellowfin Tuna ◽  
International Legal System ◽  
The Creation ◽  
Internal Order

While International Law becomes more and more specialized, a tendency towards Fragmentation becomes visible: more and more sub-regimes of International Law emerge, leading to an increased number of rules. With the creation of more sub-regimes, cases are becoming more likely in which more than one sub-regime is involved and the question arises, which sub-regime's rules take precedence. Recent examples for such collisions of regimes include the relation between Free Trade and the Protection of the Environment in theYellowfin-Tuna Casebetween the United States and Mexico which was settled only in January 2002, theTadic-Nicaragua Debateand theSwordfish Casebetween the European Community and Chile, including the need for some form of internal order or hierarchy within International Law.

(Non)-developments in environmental justice in Scotland

2018 ◽  
Vol 20 (2) ◽  
pp. 69-73 ◽  
Author(s):  
Ben Christman
Keyword(s):  
Environmental Justice ◽  
Legal System ◽  
National Party ◽  
Scottish National Party ◽  
Structural Problems ◽  
Aarhus Convention ◽  
The Creation ◽  
Scottish Government

This comment discusses the implementation of a 2011 manifesto commitment by the Scottish National Party to publish an options paper on the creation of an environmental court in Scotland. It critiques the resulting 2016 ‘Developments in environmental justice in Scotland’ consultation and subsequent 2017 ‘analysis and response’ – which decided against creating an environmental court. In particular, it examines the consultation with regard to the access to environmental justice requirements of the Aarhus Convention. Despite repeated findings by the Aarhus Convention Compliance Committee and the Meeting of the Parties that the Scottish legal system is non-compliant with Articles 9(4) and 9(5), the consultation documents mention Scotland’s ‘ongoing compliance’ and dismiss the Compliance Committee as a non-judicial body. The comment argues that the Scottish Government failed to fulfil its manifesto commitment and gave little recognition to the structural problems in accessing environmental justice in Scotland.

scholarly journals La problemática derivada del reconocimiento de los efectos del contrato de gestación subrogada desde la perspectiva del Derecho del trabajo y de la Seguridad Social = The problem derived from recognizing the effects of gestation contract subrogated from the perspective of labor law and social security

2019 ◽  
Vol 11 (2) ◽  
pp. 348
Author(s):  
David Tomás Mataix
Keyword(s):  
Social Security ◽  
Legal System ◽  
Labor Law ◽  
Social Rights ◽  
Surrogate Motherhood ◽  
New Family ◽  
The Creation ◽  
The Law

Resumen: El contrato de gestación subrogada es nulo de pleno derecho en España por ser clara­mente contrario a los principios más esenciales de nuestro ordenamiento jurídico, siendo tal consecuen­cia expresada en la Ley 14/2006, de 26 de mayo. Pese a ello, de su celebración derivan una serie de efectos en el ámbito del Derecho del Trabajo y de la Seguridad Social, surgidos a partir de la creación de una nueva realidad familiar resultada del nacimiento de un menor de edad.Palabras clave: maternidad subrogada, nulidad, derechos sociales, Seguridad Social, interés su­perior del menor.Abstract: The surrogate motherhood contract is declared invalid in Spain because it is clearly con­trary to the most essential principles of our legal system, this being expressed by the Law 14/2016, 26th of May. However, a series of effects derive from the celebration in the field of Labor and Social Security Law, arising from the creation of a new family reality resulting from the birth of a minor.Keywords: surrogate motherhood, nullity, social security, social rights, children´s interest.

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