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Journal articles on the topic 'Doctrine of precedent'
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Ratti Mendaña, Florencia S. "Dimensions of precedent: a methodology to understand the doctrine of precedent." Perspectivas 11, no. 1 (December 30, 2020): 75–107. http://dx.doi.org/10.19137/perspectivas-2021-v11n1a05.
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This article evidences multiple ways in which judicial precedent is used in different legal systems. It shows that: a) precedent is currently used, one way or another, in every legal system but its use differs in each legal system and frequently it is used differently even between courts of the same legal system; b) a comparative analysis under the methodology hereby proposed would provide useful tools in order to address how to “treat like cases alike”. The main aim of this research is to set the conceptual framework for an adequate understanding and study of the doctrine of precedent. To do this, some dimensions of the doctrine of precedent will be added to those enumerated by Michele Taruffo and analyzed not only theoretically, but also under concrete examples of how they work in different legal systems —both of common law and civil law.
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Марченко, Михаил, and Mikhail Marchenko. "FEATURES OF JUDICIAL PRECEDENT IN THE ROMAN-GERMAN SYSTEM OF LAW." Journal of Foreign Legislation and Comparative Law 2, no. 1 (March 16, 2016): 0. http://dx.doi.org/10.12737/18172.
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The article deals with the main features and characteristics of judicial precedent in the Roman-German law system in comparison with the “classical” precedent — a source of Anglo-Saxon law. Among the features of the system of judicial precedent in the Roman-German law are the following: ambiguity of the phenomenon of precedent and its continental doctrine and concepts; secondary and dual nature of the precedent over other sources of law of that legal family; selective attitude to different branches of law; diversity of the legal basis of precedents in different countries and differentiated approach to the recognition of legal effect of precedents. The technical and legal aspects of a precedent in the system of the Roman-German law, in particular the special nature of the publications of decisions of the higher courts and others are pointed out. The main features and characteristics of judicial precedent and its doctrine in the Roman-German law are disclosed by the example of case law of Germany, France, Spain, Italy and some other countries.
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LUPPI, BARBARA, and FRANCESCO PARISI. "Judicial creativity and judicial errors: an organizational perspective." Journal of Institutional Economics 6, no. 1 (January 25, 2010): 91–98. http://dx.doi.org/10.1017/s174413740999018x.
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Abstract:The different role played by case law and the historical and conceptual differences between the doctrines of precedent in common law and civil law traditions are important determinants of judicial creativity. In this article, we consider a hybrid version of stare decisis, called by the French name of jurisprudence constante, adopted by mixed jurisdictions. Unlike stare decisis, which allows a single precedent to establish case law, the doctrine of jurisprudence constante links the recognition of a judge-made rule to the existence of a consecutive line of decisions affirming the same legal principle. We develop a model to consider the effects of this doctrine on the social costs arising from judicial error and uncertainty in case law. We further consider the effects of these alternative doctrines of precedent on judicial creativity and ideological bias in judge-made law.
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Lamond, Grant. "DO PRECEDENTS CREATE RULES?" Legal Theory 11, no. 1 (March 2005): 1–26. http://dx.doi.org/10.1017/s1352325205050019.
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The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules—they are better understood as a special type of reason.
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Pattinson, Shaun D. "The Human Rights Act and the doctrine of precedent." Legal Studies 35, no. 1 (March 2015): 142–64. http://dx.doi.org/10.1111/lest.12049.
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Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.
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Barboza, Estefânia Maria De Queiroz. "Uma introdução à doutrina dos precedentes vinculantes e obrigatórios." Teoria Jurídica Contemporânea 1, no. 2 (July 25, 2017): 147. http://dx.doi.org/10.21875/tjc.v1i2.8714.
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<p><strong>RESUMO:</strong></p><p>O presente artigo <span style="font-family: Times New Roman; font-size: medium;">busca apresentar a doutrina dos precedentes vinculantes e obrigatórios como novo paradigma a ser pensado nos Estados Constitucionais democráticos que têm em seu Poder Judiciário novo locus de criação e ressignificação dos direitos humanos e fundamentais quando do julgamento dos casos constitucionais difíceis. Apresenta a doutrina dos precedentes vinculantes, presente nos países do </span><em><span style="font-family: Times New Roman; font-size: medium;">common law</span></em><span style="font-family: Times New Roman; font-size: medium;">, que nunca tiveram a ilusão de que os limites do intérprete estariam contidos no próprio texto normativo, mas para verificar de que modo a mesma foi pensada a dar coerência e segurança jurídica ao sistema. Pretendeu-se, sob o método de pesquisa bibliográfica comparada enfrentar temas relativos à força vinculante dos precedentes, quer seja do ponto de vista horizontal ou vertical, a distinção entre </span><span style="font-family: Times New Roman; font-size: medium;">precedentes persuasivos e vinculantes, bem como a possibilidade de erro no julgamento a justificar sua superação ou manutenção. Por outro lado, também apresentou a distinção entre seguir um precedente pelo fato dele ser um precedente ou pela experiência conhecida a partir do mesmo, bem como expôs as possíveis justificativas para o uso dos precedentes, como coerência, uniformidade do direito, segurança jurídica, eficiência e celeridade do Poder Judiciário.</span></p><p> <strong>ABSTRACT:</strong></p><p>This article aims to analyze the doctrine of binding precedent as a new paradigm to be thought in the constitutional and democratic States, that have their judicial branch a new locus of creation and reinterpretation of human and fundamental rights when judging the difficult constitutional cases. The article also presents the doctrine of binding precedent, as in common law countries, who have never had the illusion that the interpretation of Law has limits in the normative text itself, but to know how the system was thought to provide consistency and legal certainty. This article uses comparative constitutional literature to tackle issues relating to the binding force of precedents, either horizontal or vertical, the distinction between persuasive and binding precedents, and the possibility of error in judgment to justify its overruling or maintenance. On the other hand, it examines the distinction between following a precedent because it is a precedent or because of a known experience and exposed the justifications for the use of the binding precedents, such as consistency, uniformity of law, legal certainty and efficiency.</p><p> </p>
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Muhamad, Nasrul Hisyam Nor, Mohd Khairy Kamarudin, Abdul Basit Samat, Sulaiman Shakib Mohd Noor, Ahmad Muhyuddin Hassan, and Aminuddin Ruskam. "Application of the Doctrine of Binding Precedent in Malaysia: A Re-Evaluation." Journal of Politics and Law 13, no. 3 (August 30, 2020): 263. http://dx.doi.org/10.5539/jpl.v13n3p263.
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This paper aims to analyze the issues concerning the implementation of binding precedent in Malaysian cases, and propose a re-evaluation of the binding precedent doctrine. The qualitative approach was employed to indicate the issues related to the doctrine of binding precedent by analyzing relevant cases. These cases were selected to propose the re-evaluation of the binding precedent doctrine as practiced by the Malaysian dual-judicial system. The main issue to be discussed regarding the doctrine of binding precedent is interference by the Civil Court on Islamic matters and Syariah Court decisions, which lead to inconsistency in judgments, even after the amendment of Article 121(1A) of the Federal Constitution. This study proposes that the application of binding precedent should be re-evaluated to ensure that the principles of justice are upheld. Court judges should decide cases based on merit, and only use previous judgments as guidance for present and future cases.
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Barak, Aharon. "Overruling Precedent." Israel Law Review 21, no. 3-4 (1986): 269–95. http://dx.doi.org/10.1017/s002122370000916x.
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The legal scholarship of Prof. G. Tedeschi is broad and comprehensive, encompassing all areas of the civil law and reaching into the public law as well. At its base, there lies a solid jurisprudential foundation, in the context of which Prof. Tedeschi has devoted considerable thought to the various issues of the theory of precedent. In gratitude to Prof. Tedeschi, my venerable teacher and dear friend, to whom I owe the greatest of debts, and who for me serves as both model and symbol, I would take this opportunity to consider one aspect of the doctrine of precedent – that of overruling precedent.
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CALLANDER, STEVEN, and TOM S. CLARK. "Precedent and Doctrine in a Complicated World." American Political Science Review 111, no. 1 (February 2017): 184–203. http://dx.doi.org/10.1017/s0003055416000587.
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Courts resolve individual disputes and create principles of law to justify their decisions and guide the resolution of future cases. Those tasks present informational challenges that affect the whole judicial process. Judges must simultaneously learn about (1) the particular facts and legal implications of any dispute; (2) discover the doctrine that appropriately resolves the dispute; and (3) attempt to articulate those rules in the context of a single case so that future courts may reason from past cases. We propose a model of judicial learning and decision making in which there is a complicated relationship between facts and legal outcomes. The model has implications for many of the important questions in the judicial process, including the dynamics of common law development, the path-dependent nature of the law, and optimal case selection by supervisory courts.
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LAWTON, ANNE M., and LYNDA J. OSWALD. "TEACHING THE DOCTRINE OF PRECEDENT THROUGH SIMULATIONS." Journal of Legal Studies Education 13, no. 1 (December 1995): 121–46. http://dx.doi.org/10.1111/j.1744-1722.1995.tb00118.x.
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Figueira, Márcio Alves, and Rodrigo Vicente Maia Mendes. "A FUNDAMENTAÇÃO KANTIANA DA DOUTRINA DA INCORPORAÇÃO DO BILL OF RIGHTS." Revista Brasileira de Filosofia do Direito 5, no. 2 (December 20, 2019): 61. http://dx.doi.org/10.26668/indexlawjournals/2526-012x/2019.v5i2.5831.
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RESUMOO artigo científico visa esclarecer a fundamentação kantiana da doutrina da incorporação do Bill of Rights. A Suprema Corte dos Estados Unidos estendeu o Bill of Rights aos Estados. Neste trabalho pretendemos demonstrar a fundamentação kantiana na doutrina da incorporação do Bill of Rights, abordando a corrente filosófica do utilitarismo e do contratualismo. Em primeiro lugar, examinaremos o precedente da Suprema Corte dos Estados Unidos Gideon v. Wainwright (1963) e em seguida analisaremos filosoficamente o precedente. Em relação aos procedimentos metodológicos esta pesquisa caracteriza-se como qualitativa e descritiva, uma revisão de literaturas por meio de livros, revistas especializadas e periódicos.Palavras-Chave: Bill of Rights; Doutrina da Incorporação; Utilitarismo; Contratualismo; Imperativo categórico kantiano. ABSTRACTThe scientific article aims to clarify the Kantian foundation of the doctrine of incorporation of the Bill of Rights. The United States Supreme Court has extended the Bill of Rights to the states. In this paper we intend to demonstrate the Kantian grounding in the doctrine of incorporation of the Bill of Rights, addressing the philosophical current of utilitarianism and contractualism. First, we will examine the precedent of the United States Supreme Court Gideon v. Wainwright and then we will philosophically analyze the precedent. Regarding the methodological procedures this research is characterized as qualitative and descriptive, literature review through books.Keywords: Bill of rights; Doctrine of Incorporation; Utilitarianism; Contractualism; Kantian categorical imperative.
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Talley, Christian. "Stare Decisis and the Identity-Over-Time Problem: A Comment on the Majority's Wrongness in Kisor v. Wilkie." SMU Law Review Forum 73, no. 1 (2020): 204–21. http://dx.doi.org/10.25172/slrf.73.1.18.
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In Kisor v. Wilkie, the Supreme Court recently confronted whether to overrule the doctrine under which courts defer to agencies’ interpretations of their own ambiguous regulations—so-called Auer or Seminole Rock deference. In its prior reexaminations of Seminole Rock, the Court had progressively restricted the doctrine’s scope, leading observers to wonder whether the Justices would scrap it for good. This question of administrative law ignited a corollary debate about stare decisis. Writing for the majority, Justice Kagan argued that stare decisis mandated the preservation of Seminole Rock. Yet as she appealed to stare decisis, her opinion further restricted the conditions under which deference applies. Concurring in the judgment, Justice Gorsuch contended that the majority was wrong to invoke stare decisis while simultaneously modifying the doctrine in basic respects. Preservation of precedent, in his view, was inconsistent with its continued modification. Embedded in Justice Gorsuch’s opinion was a deep question about identity over time: If a precedent is heavily modified through subsequent case law, may the final case “reaffirming” and further modifying the precedent justifiably trace its lineage to the original case announcing the principle, such that the principle’s supposed “antiquity” lends it enhanced stare decisis weight? This Article, extending Justice Gorsuch’s critique, answers in the negative. Continuous and profound modification of a precedent casts doubt on the quality of the Court’s original reasoning and erodes the connection between earlier and later cases, thus weakening the stare decisis weight due the precedent upon its reconsideration.
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Lima, Bruno Rodrigues Teixeira de, Cleiton Borges de Menezes Junior, and Jomar Miranda Rodrigues. "PRECEDENTES JUDICIAIS VINCULANTES E A EVIDENCIAÇÃO DE PROVISÕES, PASSIVOS CONTINGENTES E ATIVOS CONTINGENTES." Revista Gestão e Desenvolvimento 16, no. 1 (February 13, 2019): 27. http://dx.doi.org/10.25112/rgd.v16i1.1635.
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O CPC 25 R1 (2009) apresenta os critérios para reconhecimento, mensuração e evidenciação das provisões, passivos contingentes e ativos contingentes, cujas regras gerais também são aplicadas aos processos judiciais ou administrativos que têm alguma probabilidade de impactar o balanço patrimonial. A literatura contábil tem se preocupado em debater diversos aspectos que envolvem o disclosure dos litígios dos quais a entidade é parte, contudo, pouco se debruçam sobre importante aspecto da legislação brasileira: os precedentes vinculantes. Nesse contexto, o artigo tem por objetivo analisar, a partir de interpretação normativa e sob o pálio da teoria do precedente, se os valores envolvidos nos processos judiciais cujas matérias de direito foram julgadas sob a sistemática dos precedentes vinculantes devem ser reconhecidos como ativos ou ativos contingentes, ou ainda como passivos, provisões ou passivos contingentes. A leitura feita é que esses casos devem estar nos extremos, porquanto o conhecimento prévio do precedente vinculante permite à entidade antever sua derrota ou vitória na discussão judicial. Investigou-se também a forma que as empresas do seguimento “Novo Mercado” da BM&F Bovespa realizam o disclosure desses valores, concluindo-se que ainda é incipiente a preocupação com o impacto dos precedentes vinculantes no balanço.Palavras-chave: Evidenciação. Ativos e passivos contingentes. Precedentes Vinculantes.AbstractCPC 25 R1 (2009) presents the criteria for recognition, measurement and disclosure of provisions, contingent liabilities and contingent assets, whose general rules are also applied to judicial and administrative lawsuits that are likely to impact the balance sheet. The accounting literature has been concerned with several aspects involving the disclosure of the litigations, but they not demonstrate concern about an important aspect of Brazilian legislation: the stare decisis doctrine. In this context, the article aims to analyze, from an interpretation perspective and under the theory of precedent, if the values involved in lawsuits whose subjects were judged under the stare decisis doctrine should be recognized as assets or contingent assets, or as liabilities, provisions or contingent liabilities. We conclude that these cases must be at the extremes, since the prior knowledge of the precedent allows the entity to foresee its defeat or victory in the judicial discussion. We also investigated how BM&F Bovespa's "Novo Mercado" companies are caring out the disclosure of these amounts, and we concluded that there is still an incipient concern about the impact of precedents on the balance sheet.Keywords: Disclosure. Contingent Liabilities. Contingent Assets. Stare Decisis.
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Horty, John F. "RULES AND REASONS IN THE THEORY OF PRECEDENT." Legal Theory 17, no. 1 (March 2011): 1–33. http://dx.doi.org/10.1017/s1352325211000036.
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The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, a logic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic.
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Komárek, Jan. "Reasoning with Previous Decisions: Beyond the Doctrine of Precedent." American Journal of Comparative Law 61, no. 1 (January 1, 2013): 149–71. http://dx.doi.org/10.5131/ajcl.2012.0013.
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Dewar, Callum D., Jason H. Boulter, Brian P. Curry, Dana M. Bowers, and Randy S. Bell. "The changing landscape of military medical malpractice: from the Feres Doctrine to present." Neurosurgical Focus 49, no. 5 (November 2020): E7. http://dx.doi.org/10.3171/2020.8.focus20594.
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Medical malpractice suits within the military have historically been limited by the Feres Doctrine, a legal precedent arising from a Supreme Court decision in 1950, which stated that active-duty personnel cannot bring suit for malpractice against either the United States government or military healthcare providers. This precedent has increasingly become a focus of discussion and reform as multiple cases claiming malpractice have been dismissed. Recently, however, the National Defense Authorization Act of 2020 initiated the first change to this precedent by creating an administrative body with the sole purpose of evaluating and settling claims of medical malpractice within the military’s $50 billion healthcare system. This article seeks to present the legal history related to military malpractice and the Feres Doctrine as well as discuss the potential future implications that may arise as the Feres Doctrine is modified for the first time in 70 years.
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Tesón, Fernando R. "Kosovo: A Powerful Precedent for the Doctrine of Humanitarian Intervention." Amsterdam Law Forum 1, no. 2 (January 24, 2009): 42. http://dx.doi.org/10.37974/alf.59.
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Sellers, Mortimer N. S. "The Doctrine of Precedent in the United States of America." American Journal of Comparative Law 54, suppl_1 (2006): 67–88. http://dx.doi.org/10.1093/ajcl/54.suppl1.67.
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Asare, Stephen Kwaku. "Inconsequential Declarations of Unconstitutionality and Unconstitutional Consequential Orders: The Case of Professor Stephen Kwaku Asare v Attorney General and General Legal Council." Journal of African Law 63, no. 3 (September 30, 2019): 463–80. http://dx.doi.org/10.1017/s0021855319000251.
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AbstractGhana's Supreme Court recently held that the regulator of the legal profession violated the country's constitution when it imposed extralegal admission requirements on LLB degree holders seeking entry to the School of Law. Nevertheless, the court relied on the prospective overruling doctrine to issue consequential orders that allowed the regulator to persist with its unconstitutional actions and left the constitutionally-injured students without a remedy. Judges employ the prospective overruling doctrine when they invalidate prior statutes or precedents while simultaneously limiting the effect of the new rule to future cases. Here, however, the court did not invalidate a statute or a precedent, mooting the issue of the temporal effect of a new rule. Rather, the court found that the regulator's actions had violated the constitution and it misapplied the prospective overruling doctrine to validate the violation. Consequently, the court's consequential orders undermined its declarations of unconstitutionality, rendering the latter inconsequential.
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Manzhosov, Sergey A. "The Issue of Judicial Law Making in Files of the Constitutional Meeting." Constitutional and municipal law 12 (December 24, 2020): 69–72. http://dx.doi.org/10.18572/1812-3767-2020-12-69-72.
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Even outside of the common law countries, it is rarely denied that the doctrine of precedent which requires to treat like cases alike ensures the uniformity of judicial practice and thus promotes legal certainty. The main objections to it in Russian jurisprudence are usually associated with the principles of separation of powers and the independence of judges. The tension between these principles, on the one hand, and the principle of legal certainty, on the other, is recognized not only by opponents, but also by some adherents of this doctrine. As a result, all argumentation in this dispute inevitably takes the form of unprovable value judgments. The frame of the discussion around the doctrine of precedent could be significantly changed, in particular, by the results of the historical interpretation of the Constitution of the Russian Federation aimed at founding out the actual intention of its authors.
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Byrne, Gavin. "Authenticity as a Justification for Precedent." Law, Culture and the Humanities 8, no. 2 (February 7, 2011): 219–43. http://dx.doi.org/10.1177/1743872110385905.
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This article argues that Heidegger’s concept “Authenticity” can be used to provide a justification for the doctrine of precedent beyond traditional predictability and equality arguments. This justification is based on an attitude towards existence itself rather than prescriptive claims about judging. The article demonstrates that a Heideggerian description of adjudication can allay the fears of writers such as Hobbes and Holmes that adherence to precedent might impede reason or justice. It further suggests that precedent presents judges with a rare opportunity to develop their own sense of reason or justice in adjudication. Particular emphasis is placed on efforts by adjudication to capture the nature of real entities. For illustrative purposes, use is made of the concept of a “lease” in the English case Ashburn Anstalt v. Arnold.
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Ratti, Florencia. "El precedente de la Corte Suprema de Justicia de la Nación Argentina." Revista Jurídica Austral 1, no. 2 (December 12, 2020): 585–626. http://dx.doi.org/10.26422/rja.2020.0102.rat.
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This paper deals with precedent in the Argentine Supreme Court by describing how it works both vertically and horizontally. It explains the current doctrine of precedent the Court develo-ped through its case law and analyses its workability in some recent cases. Finally, it examines some necessary techniques related to a proper use of precedent, such as the acknowledgment of the material facts, the structure and clarity of judicial decisions, its publication, and the identification of legitimate (and illegitimate or, at least, questionable) factors of overruling.
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Douglas, Z. "Can a Doctrine of Precedent Be Justified in Investment Treaty Arbitration?" ICSID Review 25, no. 1 (March 1, 2010): 104–10. http://dx.doi.org/10.1093/icsidreview/25.1.104.
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Ye.A., Zherbykina. "Judicial precedent in the legal system of Ukraine and classical English doctrine. Theoretical foundations of the judicial precedent." Legal Horizons 10, no. 23 (2018): 78–84. http://dx.doi.org/10.21272/legalhorizons.2018.i10.p78.
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Nepyivoda, Vasyl, and Ivanna Nepyivoda. "The highest courts’ activities as a factor establishing precedent in the capacity of a source of Ukrainian law." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 365–69. http://dx.doi.org/10.36695/2219-5521.1.2020.73.
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The Ukrainian legislation does not apply the term «precedent». It is understandable for the legal system of the Romano-Germanic family. However, judicial precedents serve as de facto source of Ukrainian law. Activities of the highest judicial institutions, the European Court of Human Rights (ECtHR), the Constitutional Court of Ukraine and the Supreme Court, providing guidelines on application of particular legal rules are principal contributors for this state of affairs. The paper provides an overview of such activities in order to evaluate the process and its prospects.
Covering the ECtHR activities, it is noted that the key elements of precedent law, such as application of stare decisis doctrine, ratio decidendi and obiter dictum components in decisions, are available there. Ukrainian courts are obliged by the statutes to apply ECtHR judgements and decisions in their own cases. Hence, the judicial precedents created by the ECtHR are the source of Ukrainian law. This discussion is followed by an analysis of the Constitutional Court of Ukraine decisions. It is concluded that been interpretative precedents they serve as a source of law as well. The third institution under examination, the Supreme Court, is empowered, inter alia, to formulate in its rulings guidelines for the application of law in a variety of situations. Since such rules are binding on the courts and other authorities, they have inherent features of the precedents and should be considered as a source of law.
The article summarizes that Ukraine falls within the continental Europe’s general trend. It implies the significant growth of the role of the European and national courts as a rule-making institutions resulting in reinforcement of the precedent as a source of law and its formalization in terms of the civil law jurisdictions. In general, such process allowing prompt adaptation to the contemporary realities is positive. To facilitate it, the term «precedent» have to be introduced into the practical area. In particular, the role of judicial precedent as a source of law should be reflected in the Ukrainian procedural legislation.
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Forman, Geremy. "Israeli Supreme Court Doctrine and the Battle over Arab Land in Galilee: A Vertical Assessment." Journal of Palestine Studies 40, no. 4 (2011): 24–44. http://dx.doi.org/10.1525/jps.2011.xl.4.24.
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In the mid-1950s, the overwhelmingly Arab central Galilee became the first regional focus of Israeli land-claiming in the context of state efforts to Judaize the region. This article examines the land-related judicial doctrines adopted by the Israeli Supreme Court through the early 1960s that facilitated this endeavor. While previous academic work on the evolution of these doctrines depicts a "horizontal" process proceeding from one SC precedent to another, this article employs a "vertical" approach that focuses on the role of litigant argument and lower-court rulings. The main finding is that in these disputes, SC justices did not merely rule in favor of the state, but consistently adopted the legal arguments advanced by the state, transforming them into SC doctrine and the law of the land.
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Nelson, Rolston. "New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent∗." Commonwealth Law Bulletin 32, no. 4 (December 2006): 635–46. http://dx.doi.org/10.1080/03050710601179069.
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Dyal-Chand, Rashmi. "Progressive Law, Activism, and Lawyering in an Age of Preemption." Law & Social Inquiry 46, no. 1 (February 2021): 252–67. http://dx.doi.org/10.1017/lsi.2020.48.
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Preemption is one of the most important legal doctrines for today’s progressives to understand because of its power to constrain progressive policymaking and social movement lawyering at the state and local level. By examining the detailed history of a decades-long campaign by the labor and environmental movements to improve working conditions in an industry at the heart of the global supply chain, Scott L. Cummings’s Blue and Green: The Drive for Justice at America’s Port (2018) provides a case study about the doctrine and impacts of preemption. The study also inspires lawyers and activists alike to reexamine core questions of factual relevance, representation and voice, and precedent.
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Sanders, A. J. G. M. "Law Reporting in Swaziland." Journal of African Law 29, no. 1 (1985): 94–101. http://dx.doi.org/10.1017/s0021855300005659.
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The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.
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N., Parchomenko. "The doctrinal approaches to figuring out the judiciary legal acts’ essence." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 27–33. http://dx.doi.org/10.33663/2524-017x-2020-11-5.
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It was found the legal nature, essence, concept and legal effect of the judiciary legal act’s at the current stage of development of the rule of law in Ukraine. At the moment, a legal science and legal practice has not the only approach to defining the application of the law by a court and judiciary legal acts. Their legal force is not clearly defined in the Ukrainian legislation, but they are binding. Therefore, the new Ukrainian legislation is investigated, namely the implementation of such legal ties as exemplary case of enshrining the binding nature of the Supreme Court’s judgements. It was found out that the judicial practice, judicial doctrine and judicial precedent have the common nature. They are the result of court’s activity, but in doing so, they have the different forms and legal force, thus, their status in the legal system, system of law and legal sources also differ. The judicial practice is primary to the judicial precedent and judicial doctrine, which result from the judicial practice and which are its manifestation. The judicial doctrine could have as a binding nature as a nature of recommendations. The judgements in exemplary case is regarded as judicial doctrine, as one of efficient manifestation of judicial practice. Therefore, the Supreme Court’s attitude were strengthened, since it has to ensure unity of judicial practice. Furthermore, the Supreme Court formulates the legal attitudes, that are binding. The court’s judgements, that are not based on the legal attitudes of the Supreme Court, the High Specialized Courts, the regulations of Supreme Court’s plenary, could be cancelled. So they are compulsory. They are the legal source at the formal legal level. Thus, judiciary’s law-enforcement acts have the normative content. Thereby, a clear distinction between legal and individual acts disappear. This is a judicial legislation. It results in the legal regulations, namely, judgements in an exemplary case or an order confirmed by the higher court. Accordingly, at the moment there is a need to legalize the legislation power of the court, what must be done on the constitutional level. That is, the reality must be formally enshrined. Keywords: doctrine, court, acts, legislation, precedent, exemplary case, practice, order, plenary, judgement.
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Macnair, Mike. "On Reducing Undue Trust in Judges: Or, Against the Modern Doctrine of Precedent." King's Law Journal 31, no. 1 (January 2, 2020): 41–58. http://dx.doi.org/10.1080/09615768.2020.1741146.
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Brito Bastos, Filipe. "Doctrinal Methodology in EU Administrative Law: Confronting the “Touch of Stateness”." German Law Journal 22, no. 4 (June 2021): 593–624. http://dx.doi.org/10.1017/glj.2021.20.
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AbstractFrom its inception, the academic study of EU administrative law has relied heavily on doctrinal categories, concepts and principles, borrowed from the administrative law of the Member States. It has largely preferred research agendas such as the Europeanisation of national administrative law or the development of common European principles derived from national administrative laws. Legal doctrine has also engaged in the critique of EU administrative law when it fails to account for the normative standards that national administrative law must usually observe. Whereas all these constitute important research agendas, they reproduce in particularly acute terms a familiar paradox. While the existence of a European administration and administrative law beyond the state cannot be seriously disputed today, legal doctrine tends to consider them, implicitly or explicitly, from the perspective of the administrative law of the nation-state. The so-called “touch of stateness” has had a firm grip on EU administrative law, even though it includes unique aspects that lack any precedent in national laws. The article considers, and proposes a methodological approach to address, the ways in which preconceptions and normative expectations originating in national law have conditioned, and indeed prevented, the deeper doctrinal development of EU administrative law.
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Sacerdoti, Giorgio. "The Authority of “Precedent” in International Adjudication: the Contentious Case of the WTO Appellate Body’s Practice." Law & Practice of International Courts and Tribunals 19, no. 3 (November 27, 2020): 497–514. http://dx.doi.org/10.1163/15718034-12341433.
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Abstract One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author’s past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels “absent cogent reasons” is in line with the practice of other international courts and tribunals.
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Elvin, Jesse. "The Doctrine of Precedent and the Provocation Defence: A Comment on R v James." Modern Law Review 69, no. 5 (September 2006): 819–31. http://dx.doi.org/10.1111/j.1468-2230.2006.00611.x.
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Papacostas, C. S. "Traditional water rights, ecology and the public trust doctrine in Hawaii." Water Policy 16, no. 1 (September 24, 2013): 184–96. http://dx.doi.org/10.2166/wp.2013.182.
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This case study discusses the implications of imposing the doctrine of public trust to ground and surface waters within the State of Hawaii and its effects on traditional rights that had previously evolved based on common law. It traces the major events of the history of water rights and practices beginning with the system devised by the indigenous Hawaiian people prior to the adoption of the doctrine of public trust to the water resources of the State of Hawaii, applied with the most expansive interpretation of the public trust doctrine, encompassing both surface and subsurface waters and a wide assortment of protected uses and purposes. The major decisions that ensued when applying the doctrine, via legal prescriptions and administrative rules, are described. The implications of the interplay between scientific enquiry and research are presented, with legal precedent in the face of potential water shortages, competing uses, sensitivities to comprehensive resource management, considerations of ecological balance and protection of the rights of indigenous people. Many of these findings are transferable to other jurisdictions contemplating the adoption of public trust doctrine principles to their surface and ground waters.
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Thejane, Puseletso Rankoane. "The Doctrine of Quasi-Mutual Assent - Has it become the General Rule for the Formation of Contracts? The Case of Pillay v Shaik 2009 4 SA 74 (SCA)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 5 (June 1, 2017): 514. http://dx.doi.org/10.17159/1727-3781/2012/v15i5a2533.
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The doctrine of quasi-mutual assent is undoubtedly part of our South African law and has been affirmed and applied in a number of leading decisions. The purpose of this note is to offer a critical analysis of the application of the doctrine in the case of Pillay v Shaik 2009 4 SA 74 (SCA). It is argued that the primary basis of contractual liability in South Africa has always been and still remains consensus ad idem as determined in terms of the rules relating to offer and acceptance It is also argued that the doctrine is not an answer to failure by the parties to comply with self-imposed formalities and/or the prescribed manner of acceptance of an offer for the valid formation of contracts. Based on the aim of the incorporation of the doctrine in our law, coupled with its application in previous court decisions, it is concluded that its application in the case of Pillay v Shaik was wrong and sets a bad precedent.
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임영덕 and Hyung Sung Kim. "A study of "Chilling Effect Doctrine" on constitutional (judicial) precedent in America, Germany and Korea." SungKyunKwan Law Review 21, no. 2 (August 2009): 1–26. http://dx.doi.org/10.17008/skklr.2009.21.2.001.
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Borokh, O. N. "China in Quesnay’s doctrine: Interpretations, translations, cultural aspects." Journal of the New Economic Association 50, no. 2 (2021): 137–62. http://dx.doi.org/10.31737/2221-2264-2021-50-2-7.
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The paper analyzes the Chinese influences on the doctrine of the French physiocrat François Quesnay from the perspective of the cultural specifics of the perception of economic and political ideas. The approaches of Chinese researchers were impacted by Marxist methodology, sinocentric views and fragmentary use of primary sources. The application of the Marxist concept of socio-economic formations supported the arguments that feudal Confucianism could not influence the views of physiocrats, which reflected the emergence of capitalist relations. In the 18th century opponents of the physiocrats used the comparison of the Tableau Économique with the scheme of the Chinese Book of Changes to disqualify Quesnay’s doctrine. For Chinese researchers this comparison became a confirmation of the value of the Tableau Économique and an incentive to search for the ideas of circular flows and equilibrium in both tables. The study of Despotism in China content confirms its connection with the actual historical China. It is concluded that Chinese scholars seek to interpret the historical precedent of the influence of Confucian thought on Quesnay’s doctrine in the context of plans to increase the global clout of China’s social sciences.
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Pearce, Augur. "Marriage Reform and the Constitution of the United Reformed Church." Ecclesiastical Law Journal 19, no. 3 (August 31, 2017): 307–24. http://dx.doi.org/10.1017/s0956618x17000485.
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Recent reforms to English and Scots marriage law faced the United Reformed Church (URC) with two challenges. Its hybrid structure of church government, entwining Congregational and Presbyterian strands, complicated application of the statutory criterion ‘persons recognised by [the membership] as competent for the purpose of giving consent’. Precedent from earlier decisions on human sexuality explains the ultimate identification of the local church meeting as the competent council of the URC in England, and why the ‘enabling resolution’ passed regarding civil partnership formation was not repeated. The very different focus of Scots marriage law posed different questions, less focused on buildings or the churches using them and allowing willing celebrants to be nominated by the synod, as for opposite-sex marriage.Advisers differed on whether the denomination possessed any binding doctrine of marriage which would obstruct implementation of the amended law. The General Assembly decision on polity and how it was reached suggest an implicit ruling in the negative. This article defends that outcome, considering the doctrinal foundation of the URC in the light of concessions made at the formative union. Marriage appears as a topic on which no denominational doctrine exists, letting all councils reach theological conclusions necessary to practical decisions within their remit.
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Kotov, O. Yu. "Hans Kelsen's Normative Theory as a Basis for Understanding the Legal Nature of the Constitutional Court Acts." Lex Russica, no. 8 (August 27, 2021): 89–98. http://dx.doi.org/10.17803/1729-5920.2021.177.8.089-098.
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The paper is devoted to certain provisions of the Hans Kelsen’s pure doctrine of law (normativism). Based on an analysis of legal and doctrinal sources, the author attempts to find the most accurate concept for the status of decisions of the constitutional court as a judicial body of constitutional control. The identification of the theoretical foundations for a clear definition of the boundary between rule making and law enforcement is one of the most important problems of law. The situation of the constitutional control bodies is of particular interest. The status of the constitutional court as a judicial body of constitutional control implies that its acts are generally binding on the entire territory of the state. The question of the legal nature of these decisions, which in Russian science initially belonged to the number of debatable ones, deserves attention. Longterm disputes, however, have not yielded positive results; have not revealed the fundamental foundations on which it would be possible to develop the doctrine of the guarantees of the constitution. Thus, the decisions of the constitutional court are equated with both law enforcement acts and sources of law that exist in the form of a precedent or even in the form of a special normative act.
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Brooks, Peter. "Narratives of the Constitutional Covenant." Daedalus 141, no. 1 (January 2012): 43–51. http://dx.doi.org/10.1162/daed_a_00127.
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The constitutional narrative plays perhaps a surprisingly important role in American society. It claims to unfold present judgment from past precedent, according to the doctrine of stare decisis, given an eloquent exposition by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, where the Constitution is referred to as a “covenant” among generations. Analysis of this and other covenantal narratives spun by the Court suggests that despite the emphasis on precedent they may work according to the retrospective logic of narrative itself, in which elements become functional in terms of what follows them. Plots work from end to beginning, reinterpreting the past in terms of the present. The Supreme Court opinion, when subjected to an analysis sensitive to its narrative rhetoric, suggests something akin to the structure of prophecy and fulfillment in its composition of the covenantal narrative.
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Roholt, Kaytlin L. "Give Me Your Tired, Your Poor, Your Pregnant." Texas A&M Law Review 5, no. 3 (April 2018): 505–35. http://dx.doi.org/10.37419/lr.v5.i3.2.
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Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of choice was the constitutional distinction between citizenship and alien status. In Garza v. Hargan, the D.C. Circuit—sitting en banc—pronounced, for the first time, that the Constitution guarantees the right to an abortion on demand to unlawfully present aliens. The Supreme Court has long held, however, that the scope of constitutional rights accorded to unlawful aliens is limited. Rather than confront this inconvenient precedent, the D.C. Circuit entirely ignored the antecedent question of whether unlawfully present aliens are entitled to the Fifth Amendment abortion right. Instead, the court simply assumed that they are. This holding is wrong for two reasons. First, by effectively deciding that an unlawful immigrant minor, in federal custody, whose only contact with the United States was her detention at the U.S. border, was entitled to the full scope of Fifth Amendment rights, the D.C. Circuit ignored Supreme Court precedent mandating that a person must have “developed substantial connections with the country” before being accorded constitutional protections. Second, by carving out this special exception for the abortion right, the court prioritized that right over all other constitutional protections.
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White, Emily Kidd. "Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent." Oñati Socio-legal Series 9, no. 9(5) (December 1, 2019): 577–95. http://dx.doi.org/10.35295//osls.iisl/0000-0000-0000-1097.
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Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.
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White, Emily Kidd. "Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent." Oñati Socio-legal Series 9, no. 9(5) (December 1, 2019): 577–95. http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-1105.
Full textAbstract:
Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.
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Holtzman, Mellisa. "The "Family Relations" Doctrine: Extending Supreme Court Precedent to Custody Disputes Between Biological and Nonbiological Parents*." Family Relations 51, no. 4 (October 2002): 335–43. http://dx.doi.org/10.1111/j.1741-3729.2002.00335.x.
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Stryker, Robin, Danielle Docka-Filipek, and Pamela Wald. "Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co-Production of Law and Science." Law & Social Inquiry 37, no. 04 (2012): 777–814. http://dx.doi.org/10.1111/j.1747-4469.2011.01277.x.
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This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political-institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial-organizational (I-O) psychology became co-produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co-production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.
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Hendrickson, Jocelyn. "Is al-Andalus Different?" Islamic Law and Society 20, no. 4 (2013): 371–424. http://dx.doi.org/10.1163/15685195-0204p0002.
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Based on a close analysis of three interrelated Mālikī fatwās on trading with the enemy issued by Granadan jurist Abū Isḥāq al-Shāṭibī (d. 790/1388), Tunisian jurist Abū ʿAbd Allāh Muḥammad al-Māzarī (d. 536/1141), and Maghribī jurist ʿAlī b. ʿAbd al-Salām al-Tasūlī (d. 1258/1842), this study shows that muftīs strategically manipulate their predecessors’ opinions in order to construct precedents more supportive of their desired rulings; the “mere” application of school doctrine to a recurring case may involve considerable juristic flexibility and adaptation of legal practice to changing legal and political circumstances. Further, these opinions demonstrate that the issuance of a fatwā is not just an intellectual task or a rhetorical exercise, but a performance. A fatwā’s value as a precedent for later jurists may be based as much on the earlier muftī’s model performance in issuing the ruling as it is on the legal message conveyed by that ruling.
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Stetsyk, Nazarii. "Case Law in Ukraine: On the Issues of Its Introduction and Development in the Activity of Supreme Court." Studia Iuridica 82 (March 2, 2020): 274–93. http://dx.doi.org/10.5604/01.3001.0013.9791.
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The article covers the doctrinal issues of judicial precedent and case law in the legal doctrine, substantiates the need for formalization and official recognition of the actual role of the decisions of the supreme courts in similar cases. Traditional doctrinal delimitation and contrasting case law and judicial practice leads to refuse of taking into account the positive experience of the functioning of case law in common law countries. Taking into account such experience would help to satisfy the demands of the court practice in raising the significance of the decisions of the supreme courts in similar cases. In Ukraine, as in many post-Soviet countries, there is a tendency to refuse explanations of legislation on the basis of summarizing of court practice, and at the same time formalization and official recognition of the bindiness and normativity of decisions of the supreme courts in specific cases. In this regard, the peculiarities of the introducing and development of the case law of the Supreme Court in Ukraine at various stages are analyzed. Also highlighted their positive and negative aspects.
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McGuckin, John Anthony. "St Symeon the New Theologian (969-1022): Byzantine spiritual renewal in search of a precedent." Studies in Church History 33 (1997): 75–90. http://dx.doi.org/10.1017/s042420840001319x.
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St Symeon the New Theologian is, without question, one of the most original and intriguing writers of medieval Byzantium. Indeed, although still largely unknown in the West, he is surely one of the greatest of all Christian mystical writers; not only for the remarkable autobiographical accounts he gives of several visions of the divine light, but also for the passionate quality of his exquisite Hymns of Divine Love, the remarkable intensity of his pneumatological doctrine, and the corresponding fire he brings to his preaching of reform in the internal and external life of the Church. He was a highly controversial figure in his own day. His disciples venerated him as a saint who had returned to the roots of the Christian tradition and personified its repristinization. His opponents, who secured his deposition and exile, regarded him as a dangerously unbalanced incompetent who, by overstressing the value of personal religious fervour, had endangered the stability of that tradition. The Vita which we possess was composed in 1054, in an attempt to rehabilitate Symeon’s memory and prepare for the return of his relics to the capital from which he had been expelled when alive. This paper will investigate how he himself understood and appropriated aspects of the earlier tradition (particularly monastic spirituality), hoping to elucidate why he felt himself inspired to reformist zeal, and why many of his contemporaries (not simply his ‘worldly opponents’ as his hagiographer would have us believe) regarded him as unbalanced. It will end by attempting some reflection on what the controversy reveals on the larger front about how the Church ‘selectively looks back on itself, so to paraphrase our president’s description of the conference theme, and whether the model of tradition and its reception exemplified in this Byzantine writer can offer anything to the dialogue between history and theology which the doctrine of Tradition (Paradosis) inevitably initiates.
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Sarvarian, Arman. "Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?" International Journal on Minority and Group Rights 22, no. 4 (October 27, 2015): 511–32. http://dx.doi.org/10.1163/15718115-02204004.
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The doctrine of uti possidetis iuris provides that, in the succession of States arising from secession or disintegration, territorial title is delimited between successors according to internal borders at the time of succession. Although it is commonly accepted that the concept originated in the nineteenth-century successions in the Spanish Americas and was generally adopted by the twentieth-century decolonization successors in Africa, international law scholars have been divided on whether the doctrine has thereafter evolved into a universal rule of customary international law that presumptively binds successors but is rebuttable by common agreement. This article argues that the ‘presumption’ of binding application is not supported by precedent and is inconsistent with the principle of consent. Rather, the law of State succession is neutral on the delimitation of successors’ frontiers: uti possidetis iuris is one of several methods of territorial delimitation that may be adopted by their common consent.