scholarly journals The hidden dimension of the language of corporations in America and Spain: perspectives for inter-legal communications

2006 ◽  
pp. 285
Author(s):  
María Ángeles Orts Llopis
Keyword(s):  
Common Law ◽  
Legal Culture ◽  
Point Of View ◽  
Company Law ◽  
Cultural Dimension ◽  
Corporate World ◽  
Culturally Different ◽  
Legal Communication ◽  
The Common ◽  
Corporate Legislation

Starting from Edward T. Hall's assumptions regarding the cultural dimension as the 'hidden dimension' of communication, this study tries to highlight the fact that legal culture vastly influences legal interaction and, hence, varies from system to system. The translation of Company Law from American Legal English into Spanish consists of an exercise in inter-legal communication, as the translator must be aware of the culturally different way s in which the corporate world is contemplated, from the point of view of both the Common Law and the Spanish Continental systems. Through a detailed analysis of the peculiarities of corporate legislation in these different systems that takes into consideration cultural variance, a discussion on the possibility of inter-legal communication is established. In addition, an account of the mercantile terminology belonging to each peculiar legal country is supplied, aimed at explaining how the two different legal systems envision different ways to establish business relationships and identify their constituents linguistically.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

Bona fides and ubuntu – A response to Dale Hutchison

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé
Keyword(s):  
South African ◽  
Common Law ◽  
Standard Form ◽  
Contract Law ◽  
Law School ◽  
Point Of View ◽  
Long Time ◽  
School Faculty ◽  
The Common ◽  
Faculty Meeting

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

The Approach to European Law in Domestic Legislation

2003 ◽  
Vol 4 (12) ◽  
pp. 1255-1275 ◽  
Author(s):  
Stefan Leible
Keyword(s):  
Historical Development ◽  
Common Law ◽  
Legal Culture ◽  
European Law ◽  
Legal Professionals ◽  
Domestic Legislation ◽  
The Status ◽  
The Common ◽  
Broad Interpretation ◽  
Teleological Interpretation

National legislators approach European law very differently. The reason for these differences lies partly in the historical development of their individual legal cultures. If one pursues a broad interpretation of the term ‘legal culture’ one takes especially into account the style of law and the attitude toward it. Thus legal culture can be defined as the Continental civil law countries’ ideal of a “concise, but comprehensive codification by which the judge can derive solutions for all possible cases through teleological interpretation;” whereas the common law rather limits this concept to “special laws which are interpreted very narrowly by the courts and accordingly are designed by the legislator to the last detail”. Furthermore, one could include the status of a judge, the nature of legal discourse, or the training of legal professionals, as well as the respect accorded to the law by the population when defining the concept of ‘legal culture'.

scholarly journals The protection of environmental interests through corporate governance: A South African company law perspective

2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Corporate Governance ◽  
South African ◽  
Common Law ◽  
Company Law ◽  
The Common ◽  
Corporate Administrators ◽  
Environmental Interests

The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.

scholarly journals The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition

2020 ◽  
Vol 21 (5) ◽  
pp. 904-923
Author(s):  
Graziella Romeo
Keyword(s):  
Common Law ◽  
Legal Culture ◽  
Legal Tradition ◽  
Cultural Resistance ◽  
Legal Context ◽  
Global Discourse ◽  
The Common ◽  
Operational Logic

AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

EQUITY IN COLONIAL WEST AFRICA: A PARADIGM OF JURIDICAL DISLOCATION

2006 ◽  
Vol 50 (2) ◽  
pp. 132-144 ◽  
Author(s):  
KWAME AKUFFO
Keyword(s):  
West Africa ◽  
Common Law ◽  
Legal Culture ◽  
Customary Law ◽  
Colonial Experience ◽  
British Colonial ◽  
The Common ◽  
English Law

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

scholarly journals LAW'S EMPIRE: ENGLISH LEGAL CULTURES AT HOME AND ABROAD

2005 ◽  
Vol 48 (1) ◽  
pp. 295-303 ◽  
Author(s):  
MARGOT C. FINN
Keyword(s):  
Social History ◽  
Legal History ◽  
Common Law ◽  
Early Modern Period ◽  
Legal Culture ◽  
The United States ◽  
Cambridge University ◽  
Legal Norms ◽  
The Common ◽  
The Law

The common law tradition: lawyers, books and the law. By J. H. Baker. London: Hambledon, 2000. Pp. xxxiv+404. ISBN 1-85285-181-3. £40.00.Lawyers, litigation and English society since 1450. By Christopher W. Brooks. London: Hambledon, 1998. Pp. x+274. ISBN 1-85285-156-2. £40.00.Professors of the law: barristers and English legal culture in the eighteenth century. By David Lemmings. Oxford: Oxford University Press, 2000. Pp. xiv+399. ISBN 0-19-820721-2. £50.00.Industrializing English law: entrepreneurship and business organization, 1720–1844. By Ron Harris. Cambridge: Cambridge University Press, 2000. Pp. xvi+331. ISBN 0-521-66275-3. £37.50.Between law and custom: ‘high’ and ‘low’ legal cultures in the lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600–1900. By Peter Karsten. Cambridge: Cambridge University Press, 2002. Pp. xvi+560. ISBN 0-521-79283-5. £70.00.The past few decades have witnessed a welcome expansion in historians' understanding of English legal cultures, a development that has extended the reach of legal history far beyond the boundaries circumscribed by the Inns of Court, the central tribunals of Westminster, and the periodic provincial circuits of their judges, barristers, and attorneys. The publication of J. G. A. Pocock's classic study, The ancient constitution and the feudal law, in 1957 laid essential foundations for this expansion by underlining the centrality of legal culture to wider political and intellectual developments in the early modern period. Recent years have seen social historians elaborate further upon the purchase exercised by legal norms outside the courtroom. Criminal law was initially at the vanguard of this historiographical trend, and developments in this field continue to revise and enrich our understanding of the law's pervasive reach in British culture. But civil litigation – most notably disputes over contracts and debts – now occupies an increasingly prominent position within the social history of the law. Law's empire, denoting the area of dominion marked out by the myriad legal cultures that emanated both from parliamentary statutes and English courts, is now a far more capacious field of study than an earlier generation of legal scholars could imagine. Without superseding the need for continued attention to established lines of legal history, the mapping of this imperial terrain has underscored the imperative for new approaches to legal culture that emphasize plurality and dislocation rather than the presumed coherence of the common law.

scholarly journals THE DEVELOPMENT OF A “RESCUE CULTURE”. INSOLVENCY GLOBALIZATION

2018 ◽  
Vol 12 (2) ◽  
pp. 1-16
Author(s):  
Ionel DIDEA ◽  
Diana Maria ILIE
Keyword(s):  
Common Law ◽  
Legal Culture ◽  
The Self ◽  
General Will ◽  
Legal Form ◽  
Global Context ◽  
Structural Coherence ◽  
Self Adaptation ◽  
The Common ◽  
The One

We are heading towards a phenomenon of internationalization and globalization of the substantiation of law, due to the fact that Romania is, inevitably, part of the process of integration and reflection of its own identity in a European and global context. Ultimately, law derives from observing the society and analysing its needs, passing through the filter of equity the final legal form in order to ensure the completeness of law, and also the structural coherence of society. Although the continental European legal culture is attached to the “general will”, globalization managed to erase many of the symbolical boundaries between the legal culture promoted by the Common-law, the one promoted by our system deeply markedby the Romano-Germanic System, and also the legal system outlined by American Realist trends, thus allowing the law to become the result of the self-adaptation of the society, not just the creation of the State.

scholarly journals Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the Companies Act 71 of 2008

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Christa Rautenbach ◽  
Brighton M Mupangavanhu
Keyword(s):  
Common Law ◽  
Social Science Research ◽  
Science Research ◽  
Company Law ◽  
Bill Of Rights ◽  
Commercial Law ◽  
Normative Framework ◽  
The Common ◽  
Research Questions ◽  
The Republic

Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisation and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context.

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