Labour Disputes: Issues Relating to Substantive Law and Procedure in the Legal Process

2014 ◽  
Author(s):  
Marina Byanova
Keyword(s):  
Legal Process ◽  
Substantive Law ◽  
Labour Disputes

On the Authoritativeness of Sunni Consensus

1986 ◽  
Vol 18 (4) ◽  
pp. 427-454 ◽  
Author(s):  
Weal B. Hallaq
Keyword(s):  
Legal Reasoning ◽  
Great Majority ◽  
The Body ◽  
Primary Sources ◽  
Legal Process ◽  
Mental Faculty ◽  
Original Case ◽  
Consensus Functions ◽  
Legal Judgments ◽  
Substantive Law

Sunni Islam recognizes four sources from and through which the laws governing its conduct are derived. These are the Qur'an, the Sunna of the Prophet, the consensus (ljmā') of the community and its scholars, and qiyās, the juridicological method of inference. The first two sources provide the jurist with the material from which he is to extract through qiyas and ijtihād (the disciplined exercise of mental faculty) the law which he believes to the best of his knowledge to be that decreed by God. Except for a relatively limited number of cases where the Qu'an and the Sunna offer already-formulated legal judgments, the great majority of furū' cases, which constitute the body of positive and substantive law, are derived by qiyas. Thus, qiyas may be used to “discover” the judgment of a new case provided that this case has not already been solved in the two primary sources. The process of legal reasoning which qiyas involves is charged with innumerable difficulties not the least of which is finding the circle of common similarity, the 'illa, between the original case in the texts and the new case which requires a legal judgment. Since finding the 'illa entails a certain amount of guesswork (zann) on the part of the jurist and since it is highly probable that the 'illa is extracted from a text which is not entirely reliable or a text capable of more than one interpretation, Sunni jurists deemed the results of qiyas to be probable (zannī). It is only at this point that consensus may enter into play in the legal process. Should Muslims, represented by their jurists, reach an agreement on the validity of a zanni legal judgment, such judgment is automatically transferred from the domain of juristic speculation to that of certainty (qat', yaqīn). Consensus then renders this judgment irrevocable, not to be challenged or reinterpreted by later generations. Furthermore, this judgment, being so irrevocable, acquires a validity tantamount to that of the Qur'an and the highly reliable traditions embodied in the Sunna of the Prophet. Thus, such a case with its established judgment becomes a precedent according to which another new legal question may be solved. It is only in this sense that consensus functions as a source of law, a source which is infallible.

Abuse of Process

1982 ◽  
Vol 17 (4) ◽  
pp. 401-466 ◽  
Author(s):  
Shalev Ginossar
Keyword(s):  
Wide Scope ◽  
Legal Process ◽  
Legal Procedure ◽  
Speaking Out ◽  
The Law ◽  
Substantive Law

Legal procedure does not enjoy great popularity. The layman resents it, since it prevents him from conducting his case by himself and forces him to resort to professional advocates. But even the jurist's attitudes to procedure is far from positive: he sees it as a mere “adjective” branch of the law that detracts from the importance of “substantive” law. Moreover, it has often emerged that the labyrinth of procedure does not lead to the triumph of the substantive law, but rather to the perversion of justice. A person expert in procedure has, as it were, wide scope in which to prevent, or, at least to distort, the revelation of the truth.From time to time, a judge may be heard speaking out against such abuse of legal process, but mostly, his is a voice crying out in the wilderness.

scholarly journals Legal Concept and Essence of Intеrnаtionаl Arbitrаtiоn

2021 ◽  
Vol 05 (01) ◽  
Author(s):  
Prof. Dr. Islambek Rustambekov ◽  
Keyword(s):  
International Arbitration ◽  
Legal Process ◽  
Established Method ◽  
Legal Concept ◽  
Legal Norms ◽  
Substantive Law

This article analyzes the legal concept and essence of international arbitration. The authors analyses that intеrnаtionаl аrbitrаtiоn is a legal process aimed at resolving disputеs between companies or individuals in different states, usually by including a clause in the contract tо rеfеr futurе disputеs to an intеrnаtionаl аrbitrаtor. Analyses showed that there is arbitrаtiоn jurisprudence, which is an established method of intеrnаtionаl аrbitrаtiоn consisting of decisions on certain types of cases and has become a source of legal norms in a number of areas, including issues of substantive law.

Criminal Forfeiture under Kenya's Proceeds of Crime and Anti-Money Laundering Act: Nature and Challenges

2020 ◽  
Vol 28 (4) ◽  
pp. 657-676
Author(s):  
Constance Gikonyo
Keyword(s):  
Money Laundering ◽  
Present State ◽  
Complex Nature ◽  
Fair Process ◽  
Proceeds Of Crime ◽  
State Of Affairs ◽  
Substantive Law

Criminal forfeiture is an asset confiscation mechanism used to seize benefits gained from an offence that one is convicted of. In Kenya, the Proceeds of Crime and Anti-Money Laundering Act provides the facilitating legislation. The present state of the regime's underutilisation prompts an examination of the substantive law and procedure provided in this statute. The analysis indicates that the provisions are technical in nature and the process is systematic. This ensures that a procedurally and substantively fair process is undertaken, in keeping with constitutional provisions. Nonetheless, identified challenges, including the complex nature of the provisions, translate to unclear interpretation and consequently ineffective implementation. This state of affairs is reversible through increased understanding of the criminal forfeiture provisions and their operation. This can potentially lead to an upsurge in its use and facilitate depriving offenders of criminal gains, removing the incentive for crime and reducing proceeds available to fund criminal activities.

Diversity and Integration in Private International Law

2019 ◽  
Keyword(s):  
South America ◽  
International Law ◽  
Value Systems ◽  
Private International Law ◽  
Diverse Range ◽  
Cross Border ◽  
Wide Range ◽  
Depth Analysis ◽  
And Shifts ◽  
Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

Sign in / Sign up

Export Citation Format

Share Document