scholarly journals The Role of Substantive Law and Procedure in the Legal Process

1932 ◽  
Vol 45 (4) ◽  
pp. 617 ◽  
Author(s):  
Thurman Arnold
Keyword(s):  
Legal Process ◽  
Substantive Law

Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25's Rorschach Blot

2014 ◽  
Vol 27 (3) ◽  
pp. 755-788 ◽  
Author(s):  
LEILA NADYA SADAT ◽  
JARROD M. JOLLY
Keyword(s):  
Rome Statute ◽  
Correct Interpretation ◽  
International Treaty ◽  
Making Sense ◽  
Treaty Interpretation ◽  
Substantive Law ◽  
Interpretative Framework

AbstractThis article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.

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.

Lo trans y la psicología: una deuda pendiente. Una crítica al lugar del psicólogx en el proceso legal del cambio de identidad de género en Chile. / Trans and psychology: a pending debt. A critique of the psychologist’s place in the legal process of ...

2016 ◽  
Vol 5 (09) ◽  
pp. 115-126
Author(s):  
Ignacio Yáñez Castillo
Keyword(s):  
Gender Identity ◽  
Social Control ◽  
Identity Change ◽  
Legal Process ◽  
Historical Process ◽  
Professional Opinion ◽  
Current Operation ◽  
As If

En el proceso histórico actual, en que asistimos a una mayor visibilidad y una creciente conquista de derechos de las sexualidades no heterosexuales, surge la pregunta respecto al lugar del psicólogx en el proceso legal de cambio de identidad de género en Chile.Actualmente –sin la existencia de una Ley de Identidad de Género– el psicólogx es consultadx por los jueces en su opinión profesional para decidir sobre la autorización o no al cambio de identidad de género de una determinada persona, al considerarlxs interlocutorxs válidxs para sancionar si una persona “es lo que dice ser”, como si la psicología tuviera una respuesta ante la pregunta de qué es una mujer o qué es un hombre. Críticos del operar actual de la psicología en esta materia, se propone en cambio, un rol del psicólogx que permita pensar la psicología fuera del control social al que ha sido relegada en esta materia, siendo capaz de dar cuenta de los procesos de desigualación operantes y sus efectos en la subjetividad. In the current historical process, where we are witnessing a greater visibility and a growing conquest of rights of non-heterosexual sexualities, the question arises as to the place of the psychologist in the legal process of gender identity change in Chile.Currently –without the existence of a Gender Identity Law– the psychologist is consulted by the judges in their professional opinion to decide on the authorization or not to change the gender identity of a particular person, considering the valid interlocutors to sanction if a person “is what it claims to be,” as if psychology ad an answer to the question of what a woman is or what a man is. Critics of the current operation of psychology in this matter, however, proposes a role of psychology that allows psychology to think outside of social control that hasbeen relegated in this matter, being able to account for the processes of inequality operative and Its effects on subjectivity.

The Amboyna Business

2020 ◽  
pp. 44-75
Author(s):  
Alison Games
Keyword(s):  
Legal Process ◽  
Almost All ◽  
Japanese English

This chapter reconstructs the conspiracy trial on Ambon in 1623 by drawing on over fifty depositions and other sources, almost all created after the trial. It analyzes why a Japanese soldier’s questions triggered VOC suspicions of a regional plot featuring Japanese, English, and Indo-Portuguese co-conspirators, and why the alleged plot took the form the VOC believed it did. It explores the role of torture in the legal process. In the course of presenting a narrative of the conspiracy trial, it sifts through conflicting perspectives and interpretations of events. Almost all aspects of the trial were later disputed in Europe, and this chapter deals directly with the interpretive problems posed by the surviving sources.

Competition Law in Europe

2020 ◽  
pp. 103-114
Author(s):  
David J. Gerber
Keyword(s):  
Reference Point ◽  
Competition Law ◽  
Institutional Arrangements ◽  
The Other ◽  
Multiple Voices ◽  
The Us ◽  
National Boundaries ◽  
Substantive Law ◽  
European Competition Law

European competition law is the other central player in the competition law world, so an entire chapter is devoted to understanding how it works and how to deal with it. Virtually all firms operating beyond their own national boundaries need to pay attention to it, many regimes use it as a model and reference point, and its institutions have broad and often deep influence on many others. Some aspects of the substantive law are similar to US antitrust, but the similarities are sometimes misleading. For example, EU law uses economic analysis in ways that often differ from how it is used in the US. Procedural and institutional arrangements are often complicated. They represent multiple voices, as national and EU institutions function together to create, apply, and enforce competition law. The chapter reveals how this system functions and what factors guide decisions in it. It looks, in particular, at the institutional arrangements between the EU and its member states, including the role of the European Competition Network.

Us Antitrust Law: Central, but Unique

2020 ◽  
pp. 91-102
Author(s):  
David J. Gerber
Keyword(s):  
Practical Importance ◽  
Competition Law ◽  
Antitrust Law ◽  
Basic Principles ◽  
Judicial Decisions ◽  
Rule Of Reason ◽  
Institutional Structures ◽  
Per Se ◽  
Substantive Law

US antitrust law has long influenced all who deal with competition law—sometimes as a model, sometimes as a source of experience and insights, and sometimes as a surrogate for an “international standard.” It also has great practical importance in international business. This chapter provides information and insights necessary for understanding its roles and engaging with its rules and procedures. The chapter explains its institutional structures, basic principles of substantive law, and the central role of economic analysis in deciding cases. In particular, it throws light on the unique way in which judicial decisions (case law) guide decisions in all institutions and on the central significance of the categories of “rule of reason” and “per se treatment.” It also provides insights into the dynamics of the regime—the factors that drive antitrust decisions. It also sketches the ways in which it exercises influence on other competition law regimes.

scholarly journals Role of voice in the legal process*

Criminology ◽  
2019 ◽  
Vol 57 (2) ◽  
pp. 343-368 ◽  
Author(s):  
Liana Pennington ◽  
Amy Farrell
Keyword(s):  
Legal Process

scholarly journals IL DIRITTO SOCIETARIO TRA DIRITTO COMPARATO E DIRITTO STRANIERO

2013 ◽  
Author(s):  
Giuseppe B. Portale
Keyword(s):  
Comparative Law ◽  
Corporate Law ◽  
Private Company ◽  
General Role ◽  
Foreign Law ◽  
Specific Regulation ◽  
The One ◽  
Substantive Law ◽  
Theoretical Foundations

The article tackles the issues related to the use of comparative law a source of substantive law in a specific legal system, with specific regard to corporate law. Expanding on previous studies on the general role of comparative law in the framework of sources of law (§ 1), the study argues that the comparative argument may be used to regulate purely domestic cases and as well as a play a crucial role in interpreting internal laws (§§ 1.1, 1.2) and analyzes the theoretical foundations of such process (§ 1.3) as well as the problems caused by the application of foreign law by a domestic judge (§ 2). Subsequently, two examples of such usage of the comparative legal argument are provided, drawn from the Italian corporate law experience (§ 3): on the one hand, the introduction of a specific regulation of a simplified private company (società a responsabilità limitata semplificata), representing a circulation of German (Unternehmergesellschaft- UG) and Belgian (société privée a responsabilité limitée starter) models (§ 3.1); on the other hand, the use of comparative law by in the interpretation of the organization structure in the Italian dualistic system (§ 3.2).

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