Journal articles on the topic 'Law – Interpretation and construction'
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1
Iryna, Sharkova. "Genesis Good Faith Interpretation (Interpretatio ex Bona Fide) in Roman Private Law." Legal Ukraine 5, no. 5 (May 26, 2021): 46–50. http://dx.doi.org/10.37749/2308-9636-2021-5(221)-6.
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The paper explores the main meaning of understanding of interpretation technologies based on the principle of good faith (bona fides). For this purpose, a compratibly historical method of private law is applied. It was substantiated the understanding of the process of development for the Roman legal institution of interpretation (ius interpretātio) as a transformation of its historical forms or sub-institutions. Were further developed the historical reconstruction of the Roman legal institution of iudicia bonae fidei as the most important for the formation of ius interpretātio by focusing on the study of key legal constructions pro boni viri arbitrio. This made it possible to obtain information that can be reduced to three positions: (1) The essence of the Principle of Good Conscience has a constant nature in world history; (2) In Roman private law, a contextual approach to interpretation was used, and in modern civil law of Ukraine – fundamentally different, textual; (3) The subjective criterion of common sense requires the implementation of the Civil code of Ukraine. It provides changes in the official legal structure of the priority of the literal interpretation of the content of the transaction, enshrined in Art. 213 of the CCU, on the construction of the rule of good faith interpretation, which is generally recognized in European contract law. Key words: comparative historical analysis, good faith, common sense, good faith interpretation, good faith contracts, claims of goodholders.
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Robertson, Andrew. "Purposive contractual interpretation." Legal Studies 39, no. 2 (January 28, 2019): 230–46. http://dx.doi.org/10.1017/lst.2018.33.
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AbstractIt is now well recognised that contractual purposes play an important role in the construction of contracts. The methods by which purposes are taken into account have not, however, been systematically explored. This paper considers three central issues in the purposive construction of contracts: first, the reasons contractual purposes are relevant to the interpretation of express terms and the identification of implied terms; secondly, the way in which contractual purposes are identified and distinguished from individual party interests; and, thirdly, the different ways in which contractual purposes inform the processes of interpretation and implication. It is argued that reference to contractual purposes can both raise and resolve interpretive choices, and that purposive construction plays a significant and under-recognised role in the identification of implied terms.
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Rowe, Matthew. "Interpretation and Construction, Art, Speech, and the Law." British Journal of Aesthetics 44, no. 3 (July 1, 2004): 303–4. http://dx.doi.org/10.1093/aesthj/44.3.303.
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Gracyk, T. "Interpretation and Construction: Art, Speech, and the Law." Philosophical Review 115, no. 4 (October 1, 2006): 524–26. http://dx.doi.org/10.1215/00318108-2006-013.
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Spaić, Bojan. "Interpretation and construction: An addendum to the discussion about creation and application of law." Pravni zapisi 12, no. 1 (2021): 29–61. http://dx.doi.org/10.5937/pravzap0-31882.
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As part of their regular activities, courts attach meaning to legal texts to determine the normative situation of the parties to the dispute. The activity of attributing meaning to legal texts by the courts is commonly called authoritative interpretation of law. In many cases, the meaning attributed to the text by the court deviates significantly from what laymen and even lawyers would expect, and the deviations themselves are explained in different ways in legal theory. In the purpose of explanation, the terms creation and application of law, extensive and restrictive interpretation, secundum, praeter and contra legem adjudication are used. This paper introduces and explains the concepts of interpretation, construction and their relationship, as possible explanations of situations in which authoritative judicial interpretations deviate from the expectations of the professional and lay public. For this purpose, contemporary textualist and intentionalist (cognitivist) conceptions of interpretation and construction are presented and compared with contemporary skeptical (realist, antiformalist) conceptions. Despite the simplicity and intuitive acceptability of some cognitivist views, skepticism is shown to provide a better theoretical basis for considering the application and creation of rights by courts. The very distinction between interpretation and construction proves to be a useful theoretical tool for explaining the actions of courts, as well as for specifying existing theoretical distinctions.
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Tetley, William. "Canadian Interpretation and Construction of Maritime Conventions." Revue générale de droit 22, no. 1 (March 21, 2019): 109–28. http://dx.doi.org/10.7202/1058170ar.
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In this article, the author first describes the essentially civilian nature and origin of maritime law in the United Kingdom, the United States and Canada, a point unfortunately overlooked in the Supreme Court of Canada’s decision in the Buenos Aires Maru case [1986] 1 S.C.R. 752, but recognized in the judgement of the same Court in Chartwell Shipping Ltd v. Q.N.S. Paper, [1989] 2 S.C.R. 683. The article touches briefly on the federal jurisdiction over maritime law in Canada, the dual jurisdiction of the Federal Court and the superior courts of the provinces in maritime matters and the mixed civilian / common law system in Quebec. Consideration is then given to the Constitution Act, 1867, as interpreted by the much-criticized Labour Conventions decision of the Privy Council [1937] A.C. 326. The decision held that although the power to conclude international treaties and conventions in Canada is vested in the federal government alone, the enactment of the domestic legislation required to secure the implementation of such international agreements is not an exclusively federal matter, but may be a question of either federal or provincial competence, depending on the subject matter of the treaty or convention concerned. The author then reviews the principal rules of statutory interpretation which are provided for by the Vienna Convention on the Law of Treaties of 1969. He points out that, notwithstanding Canada’s ratification of this Convention in 1970, Canadian courts still tend to apply traditional (and often narrow) techniques of statutory interpretation when called upon to construe treaty texts, rather than keeping the goals of the agreement and intent of the parties in view, as the Vienna Convention requires. He indicates, however, a more recent judicial trend towards a more liberal methodology, as evidenced in decisions like R. v. Palacios, (1984) 45 O.R. (2d) 269 (Ont. C.A.) The article concludes with a brief overview of the major statutory interpretation rules applied by Canadian courts in construing local laws and international agreements and some aids to such interpretation. Professor Tetley, as a last tribute, applauds what he sees to be the slowly emerging "general consensus" on statutory and treaty interpretation in Canada.
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Tietz, Jonathan. "The "Broadest Reasonable Interpretation" and Applying Issue Preclusion to Administrative Patent Claim Construction." Michigan Law Review, no. 117.2 (2018): 349. http://dx.doi.org/10.36644/mlr.117.2.broadest.
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Inventions are tangible. Yet patents comprise words, and words are imprecise. Thus, disputes over patents involve a process known as “claim construction,” which formally clarifies the meaning of a patent claim’s words and, therefore, the scope of the underlying property right. Adversarial claim construction commonly occurs in various Article III and Article I settings, such as district courts or the Patent Trial and Appeal Board (PTAB). When these proceedings ignore each other’s claim constructions, a patent’s scope can become inconsistent and unpredictable. The doctrine of issue preclusion could help with this problem. The Supreme Court recently reemphasized in B & B Hardware v. Hargis Industries that administrative decisions can have issue preclusive effect. But district courts and the PTAB use formally different legal standards in claim construction, where the district court takes a narrower view of a patent’s scope. This Note contends that a claim construction determination made by the PTAB under the “broadest reasonable interpretation” standard should, indeed, be the broadest reasonable interpretation of a claim. To facilitate uniformity and public notice, issue preclusion should be applied such that the PTAB’s “broadest reasonable interpretation” is an outer interpretive bound of a patent’s scope in subsequent district court litigation.
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Weiling, Luo, and Liang Deng. "Legal Construction of Algorithm Interpretation." NAVEIÑ REET: Nordic Journal of Law and Social Research, no. 9 (December 17, 2019): 171–86. http://dx.doi.org/10.7146/nnjlsr.v1i9.122157.
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Nowadays the development of AI technology is not yet mature, let alone the legal definition and regulation of its type, even the type of technology itself is full of uncertain factors. Because of the rapid development of technology and the openness of theories, scientists have not yet formed a unified consensus and system on cutting-edge technical issues. Therefore, at present, governments all over the world are actively formulating the development plans of AI, but the supervision and regulation of AI are scattered and lagging behind. There is nothing wrong with encouraging the development of new technologies, but the application of technologies requires a responsible response to various ethical demands from human society. No matter what form of AI technology and its application are inseparable from the algorithm and the issue of “algorithm accountability” may probably be a focus of legal regulations on AI and the path of accountability is algorithm interpretation. It is desirable but regrettable that the EU’s GDPR stipulates the non-binding “right to explanation”. But the stop of GDPR is exactly the starting point of constructing the algorithm interpretation mechanism in law.
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Selimi, Behar, and Murat Jashari. "Constitutional Interpretation or Construction of the Government-Formation Process in Kosovo." Zbornik Pravnog fakulteta u Zagrebu 71, no. 6 (February 1, 2022): 867–96. http://dx.doi.org/10.3935/zpfz.71.6.03.
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This article analyzes the constitutional provisions and practices of the Kosovar process of forming a government in two scenarios: after a parliamentary election, and after a motion of no confidence. The factors that most prominently complicate this process are the proportional electoral system, extreme party pluralism, and ambiguous constitutional provisions. Leaving aside the first two factors, which have thus far resisted efforts to change them, the authors claim that the constitutional law dealing with the government-formation process has undergone both procedural and substantive changes as a result of interpretations and decisions by the Constitutional Court. The authors further note that these changes are constitutional constructions, rather than constitutional interpretations, and describe the novel, resultant practice as legitimized without amendment. These constitutional interpretations and constructions, their possible alternatives, and the relevant constitutional provisions are analyzed through doctrinal legal research. That constitutional judgments can be reinterpreted and abused by interim, and office-seeking (rather than policy-seeking) political coalitions seems a condition poised to engender future instability; therefore, the authors hold that the amendment of the constitution is the best insurance against political and constitutional crises when it comes to forming a government, either after elections or with the same legislature. The authors hope that this paper will contribute to the enrichment of the constitutional practice of forming parliamentary governments and the development of the doctrine of constitutional interpretation.
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Serediuk, Vitalii. "Methodological importance of legal constructions and their influence on the legal norms interpretation." Krakowskie Studia Małopolskie 38, no. 2 (2023): 26–36. http://dx.doi.org/10.15804/ksm20230202.
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The article reveals the methodological significance of legal constructions and shows their influence on the interpretation of legal norms. It has been found that legal construction is one of the epistemological tools of legal science and means of interpreting legal norms in the process of their implementation. A concentrated expression of the possible conditions of law enforcement determines the methodological significance of legal constructions during the interpretation of legal norms. The legal construction is shown as a set of stable connections of the object, which ensure its integrity and identity. Emphasis is placed on the fact that intraindustry and inter-industry connections of legal norms allow law to preserve its properties as a regulatory in the face of internal and external changes, to be stable and stable. The existence of a stable structure determines the existence of law as a system is a condition for the existence of law. The author came to the conclusion that in order to optimize legal interpretation activity, it is necessary to improve the process of eliminating defects in legal constructions. The ambiguity and inconsistency of legal constructions is a consequence of the increase in the number of scientific terms, special expressions, contradictions and gaps in the normative material. The reason for this is hasty normative design without compliance with the requirements of legal technique. With the help of legal constructions, insightful, detailed and in-depth clarification of the content of legal norms is carried out.
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Xie, Siyuan. "Research on the System of Interpretation of the Basic Law of Hong Kong." Lecture Notes in Education Psychology and Public Media 32, no. 1 (December 20, 2023): 33–37. http://dx.doi.org/10.54254/2753-7048/32/20230517.
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The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (PRC) is implemented within the framework of the law rule, which is closely related to the Basic Law interpretation mechanism. It is stipulated in the Basic Law that the Standing Committee of the National People's Congress (NPC) has the authority of interpretation, and the Standing Committee of the NPC authorizes Hong Kong (HK) courts to have the power of interpretation when trying cases. Under the "One Country, Two Systems" policy, the common law goes on to be adopted in HK according to the Basic Law provisions. Therefore, that Law combines the background of the socialist law mechanism with Chinese features as well as the common law mechanism. The interaction and coordination between the two is an important issue in its implementation. This paper provides an overview of HK Basic Law interpretation system, and provides an overall review of the five interpretations of the National People's Congress Standing Committee since the construction of HK Special Administrative Region (HKSAR). It analyzes differences in legal interpretation rules between the two regions, and explores the connection and coordination between the two interpretation mechanisms of the NPC Standing Committee and HK courts.
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Davies, David, and Julie Van Camp. "Robert Stecker, Interpretation and Construction: Art, Speech, and the Law." Journal of Aesthetics and Art Criticism 62, no. 3 (June 29, 2004): 291–96. http://dx.doi.org/10.1111/j.0021-8529.2004.00161.x.
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Harrison, Nicholas J. "Construction or deconstruction in the interpretation of statutes?" Law Teacher 23, no. 2 (January 1989): 162–72. http://dx.doi.org/10.1080/03069400.1989.9992734.
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Омелёхина, Наталья, and Natalya Omelekhina. "The Legal Construction of Financial Liabilities: Conceptual Bases of Formation." Journal of Russian Law 4, no. 10 (September 19, 2016): 0. http://dx.doi.org/10.12737/21539.
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In this article the legal construction is considered as a method of cognition, interpretation of law and as means of law-making technique at the same time. The author outlines the legal construction of the financial liability and provides with its structural and substantive description. The author offers to consider the legal construction of the financial liability as an inter-branch construction that combines private law constructions and public law constructions of monetary obligations. The majority of these constructions have a complex structure, where each party has the right to claim the completion of obligations and duty to complete these obligations at the same time. In this case, the majority of studied constructions of civil obligations are characterized by counter retribution while public law constructions by counter gratuitousness. The structural elements of this inter-branch construction are subjects, object and conditions of the obligation. The paper analyzes maintenance of selected structural elements. Using the method of scientific abstraction it is proposed to allocate General and Special conditions of financial liabilities. Special conditions of financial liabilities depend on the peculiarities of private law and public law regulations and on target orientation of liabilities (on the formation or on the expenditure of public funds). The author focuses on the target characteristic of structural elements of financial liabilities legal constructions. It is proposed to allocate the total and the direct target orientation of the financial liability.
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Jha, Srijita, and Akshay Zaveri. "Working of Section 153A of the Income Tax Act, 1961: Resolving the Conflict between the Literal Rule of Interpretation and Harmonious Construction." Christ University Law Journal 6, no. 2 (June 1, 2017): 45–60. http://dx.doi.org/10.12728/culj.11.3.
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This article ventures into the various interpretations given by the court for the execution of Section 153A of the Income Tax Act, 1961. It has forever been a conflict as to how the particular section has to be interpreted, in order to decide whether the items of regular assessment can be added back in the proceeding under section 153A, after the finalization of assessment. This article tries to decode the mixed opinions of the court with regard to whether it is the literal rule of interpretation or the rule of harmonious construction that would apply to interpret Section 153A. This issue has been dealt with by the authors by analysing the various tools of interpretation of statutes like Literal Rule of Interpretation, reading down of statute as a whole, Rule of Harmonious Construction of statute etc. and their application in various cases based on judicial dicta of the court of law. The authors, based on thorough analysis of Section 153A, based on the language of the provision and the interpretations attached to it by the Judiciary, have tried to resolve the conflict between the Literal rule of interpretation and harmonious construction.
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Virgo, Graham. "Contract construction and risk allocation." Cambridge Law Journal 58, no. 2 (July 1999): 265–93. http://dx.doi.org/10.1017/s0008197399242018.
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WHEN a judge needs to construe a contract, to what extent can he or she have regard to factors which are external to the agreement rather than adopt a literal interpretation? This was the crucial question for the Court of Appeal to answer in Bromarin A.B. and others v. I.M.D. Investments Ltd. [1999] S.T.C. 301.
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Iseminger, Gary. "Interpretation and Construction: Art, Speech, and the Law, by Robert Stecker." European Journal of Philosophy 15, no. 1 (April 2007): 114–18. http://dx.doi.org/10.1111/j.1468-0378.2007.00244_2.x.
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SADAT, LEILA NADYA, and JARROD M. JOLLY. "Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25's Rorschach Blot." Leiden Journal of International Law 27, no. 3 (July 24, 2014): 755–88. http://dx.doi.org/10.1017/s0922156514000296.
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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.
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Romadhon, Ahmad Heru, Fachria Lapasere, and Yuli Endah Wardantik. "Restrictive use of interpretation of language actions in legal construction." Electronic Journal of Education, Social Economics and Technology 3, no. 1 (April 30, 2022): 33–38. http://dx.doi.org/10.33122/ejeset.v3i1.34.
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The purpose of this study is to understand the essence of language action in legal construction as a means of communication that should rely on language grammar in interpreting the meaning of sentences. Such a method is an attempt to avoid the different interpretations of the multiple interpretations of the meaning of language. The simplification of legal language must be linked to the content of the rules, where there are two arguments regarding "intentions and extensions", before carrying out legal interpretation, then interpretation is generally understood as a process, action, series of interpreting and explaining the meaning of something that is less clear or opinion, view of the context in which it is interpreted. This study uses a normative juridical method that explains the interpretation of manuscripts, legal principles and principles, legal rules, theories and legal doctrines that apply as a tool to understand the meaning of legal language communication and to understand the substance of a statutory regulation. The research approach uses a conceptual approach to examine and examine the subject matter. The consequences of blurred inter-connections result in a disparity in the factual application of the law which is correlated with a “policy during decision-making” in a formulaic policy which is a “policy” context. Based on these aspects, especially in language action, it is essentially an "effort in realizing clarity of meaning in laws and regulations so that they are in accordance with current and future implementation and conditions.
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Joo, Dong-Jin. "Analysis of the Supreme Court Administrative Law Cases in 2023: Focusing on Construction Law Cases." Kyung Hee Law Journal 59, no. 2 (June 30, 2024): 85–116. http://dx.doi.org/10.15539/khlj.59.2.2.
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The Supreme Court sentenced a number of meaningful administrative law rulings in 2023. Many of them are based on individual public law regulations and specific problems arising from them. In this article, several rulings related to the ‘Public Construction Law’ were selected and examined. ① The Supreme Court’s sentence of 2022DU31143 on September 21, 2023 confirms once again that it is necessary to obtain ’the legal status of being allowed to development’for construction in addition to securing a source of use of land. It is meaningful in that it declared that the above requirements are also necessary for notification of building construction. Considering the judgment, it has been more clearly confirmed that the notification of building construction is bound to be regarded as a notification requiring acceptance, and the need for a legislative review of the overall building construction notification system emerges. ② The Supreme Court’s sentence of February 2, 2023, 2020DU43722 is a question of whether the guidelines for the operation of development permission, which are orders of the Ministry of Land, Infrastructure and Transport prepared based on Article 56 (4) of the Enforcement Decree of the National Land Planning Act, are externally binding legal orders. Aside from the evaluation of the conclusions of the judgment, the judgment provides various issues regarding the handling of administrative rules and normative control. ③ The Supreme Court’s ruling on February 23, 2023, 2020Du36724 is meaningful in that it revealed the relationship between members and landowners in housing redevelopment projects in accordance with the Urban Improvement Act, and that the right to receive a house in housing redevelopment projects should be based on the status of members. ④ The Supreme Court’s ruling on October 18, 2023, 2023DU42584 dealt directly with whether indemnity for possession of state property can be imposed on a person who is in a legal position to justify the possession and use of state property but does not get a use permit or sign loan contract. Although we can accept the conclusion of the judgment, it raises the question of the court’s interpretation of the law and its limitations. The above two judgments are examples of how the purpose of a public law can be considered in the interpretation and application of individual public law regulations, and provide implications regarding the legal interpretation method of administrative law.
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Bhatia, Vijay K. "Interpreting law in socio-pragmatic space." Semiotica 2017, no. 216 (May 24, 2017): 109–30. http://dx.doi.org/10.1515/sem-2015-0079.
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AbstractUnlike any other form of professional communication, legal discourse, especially in a legislative context, is unique in the sense that it is full of contradictions. Firstly, it is highly depersonalized, as its illocutionary force is independent of any specific writer or reader, and yet it is meant to address a diverse range of audiences. Secondly, it is meant for ordinary citizens, but is written in a style that is meant only for legal specialists. Thirdly, although its primary function is to assign rights and impose obligations to act or prohibit action, it is written in a highly nominal style (language of thinking) rather than verbal style (language of doing). And finally, legislative provisions are meant to be “clear,” “precise,” “unambiguous,” on the one hand, and “all-inclusive,” on the other, which can be seen as a contratdiction in terms. Most of these seeming contradictions make it difficult for the various stakeholders, which include specialists as well as non-specialists, to manage “socio-pragmatic space” in the construction and, more importantly, interpretation of such provisions, particularly when they are interpreted in broadly socio-political contexts. Drawing on some of the contradictory interpretations of certain sections of the Basic Law, widely regarded as the mini-constitution of Hong Kong, this paper will identify and discuss key theoretical issues emerging from a diversity of meanings attributed to somewhat innocuous legislative constructions, which precipitated the “Occupy Central” movement, largely popularized as the symbolic “Umbrella Movement.” The paper thus attempts to highlight two rather different aspects of interpretation of legal meaning, one in the court of law for the negotiation of justice, and the other in wider socio-political and public domains where law is interpreted broadly with wider social implications.
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Piecha, Jacek. "Decyzja o zezwoleniu na lokalizację obiektów budowlanych w pasie drogowym jako źródło prawa do dysponowania nieruchomością na cele budowlane." Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 30 (2020): 189–202. http://dx.doi.org/10.15584/znurprawo.2020.30.12.
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The article presents the problem of the interpretation of art. 3 point 11 of the polish Construction Law act. Abovementioned provision statues the definition of the notion of “right to use the real property for construction purposes”. Literal wording of art. 3 point 11 may seemingly indicate that this right may be arised only from private (civil) law’s legal relationships. This paper aims to indicate that such interpretation of the art. 3 point 11 of the Construction Law act is incorrect. The author proves that the administrative act like the permit for building structures localisation in the road lane (statued in the Public Roads Act) may be considered as independent source of the investor’s right to use the real property for construction purposes.
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Wang, Yinwei. "Localization Construction of Security Token Offering." Transactions on Economics, Business and Management Research 5 (March 31, 2024): 207–19. http://dx.doi.org/10.62051/ca4aty74.
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The Security Token Offering (STO) represents a fusion of traditional securities and blockchain token issuance, categorized into asset-based STO, derivatives-based STO, and payment-based STO, establishing a novel tripartite legal relationship among the issuer, trading platform, and subscriber. This study commences by defining the essence of STOs, delving into the fundamental legal dynamics, and scrutinizing the primary challenges in localizing construction, specifically the limitations of the conventional civil law system and the complexities in establishing a rights bundle paradigm. In accordance with prevailing regulations, it advocates for a localized construction approach, involving an expanded interpretation within the criminal law and civil law systems. The adaptation within the criminal law system involves recognizing the property attributes to prevent classification as illicit tokens or other violations. Meanwhile, the adaptation within the civil law system entails endorsing the legalization of security token trading and validating the legitimacy of entrusted investment and trading activities involving security tokens.
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Kludze, A. K. P. "Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana." Journal of African Law 42, no. 1 (1998): 37–63. http://dx.doi.org/10.1017/s0021855300010482.
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The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.
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Sun, Yeneng. "Hyperfinite Law of Large Numbers." Bulletin of Symbolic Logic 2, no. 2 (June 1996): 189–98. http://dx.doi.org/10.2307/421109.
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AbstractThe Loeb space construction in nonstandard analysis is applied to the theory of processes to reveal basic phenomena which cannot be treated using classical methods. An asymptotic interpretation of results established here shows that for a triangular array (or a sequence) of random variables, asymptotic uncorrelatedness or asymptotic pairwise independence is necessary and sufficient for the validity of appropriate versions of the law of large numbers. Our intrinsic characterization of almost sure pairwise independence leads to the equivalence of various multiplicative properties of random variables.
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Leszczyński, Leszek. "Open Axiology in Judicial Interpretation of Law and Possible Misuse of Discretion." Studia Iuridica Lublinensia 29, no. 3 (June 30, 2020): 39. http://dx.doi.org/10.17951/sil.2020.29.3.39-54.
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<p>The subject of the article is to determine the extent to which the judicial interpretation of the law is affected by the use of an open axiology argument in the course of adjudication. Assuming that the use of open criteria is based primarily on the application of the legislative construction of general reference clauses, it is important to link these references to a legislative policy in which they constitute a means of deliberately extending the scope of discretionary power, derived from natural (independent of the legislator) sources. The essential function of the references is the axiological opening of findings made in all essential phases of judicial interpretation – validation, reconstruction and construction, resulting, among other things, in a change in the relationship between the roles of particular interpretation rules. This may lead to various manifestations of abuse of the interpretative discretion of judges, which in turn necessitates the search for certain remedies, among which the formation of permanent lines of jurisdiction and precedential practice, as well as the transparency of the reasoning of judgements, seems to be of the utmost importance.</p>
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Gözlügöl, Alperen Afşin. "The Effects of Umbrella Clauses: Their Relevance in Interpretation and in Practice." Journal of World Investment & Trade 21, no. 4 (August 10, 2020): 558–94. http://dx.doi.org/10.1163/22119000-12340184.
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Abstract Umbrella clauses have sparked one of the great debates in international investment law as regards their proper construction. This article argues that a particular line of reasoning and interpretation appears to be unduly focusing on the effects of such clauses in the process of construing them. In other words, what seems to occur in the interpretation of umbrella clauses is that some tribunals, frightened by the far-reaching consequences, construe such clauses more narrowly. I call this phenomenon ‘adverse effects analysis’ and demonstrate that it is inconsistent with the proper construction of umbrella clauses in accordance with the rules of interpretation in the Vienna Convention on the Law of Treaties (VCLT). In this course, the effects of umbrella clauses in practice are also put forward along with an analysis of them under ‘manifest absurdity or unreasonableness test’ pursuant to Article 32(b) of VCLT.
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Baade, Hans W. "Time and Meaning: Notes on the Intertemporal Law of Statutory Construction and Constitutional Interpretation." American Journal of Comparative Law 43, no. 3 (1995): 319. http://dx.doi.org/10.2307/840640.
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SAMUELS, ALEC. "The Impact of Article 177 Rulings on English Law: Problems of Construction and Interpretation." Statute Law Review 14, no. 2 (1993): 111–25. http://dx.doi.org/10.1093/slr/14.2.111.
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LAMOTKIN, ALEXEY, NATALIA MISYURA, and EVGENII MITYUSHOV. "THE TRAJECTORIES CONSTRUCTION OF THE UNIVERSAL JOINT MOVEMENT IN THE CONFIGURATION SPACE IN ℝ3." Computational Nanotechnology 10, no. 1 (March 30, 2023): 60–66. http://dx.doi.org/10.33693/2313-223x-2023-10-1-60-66.
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In this paper, the study of the movement of the universal joint using the quaternion formalism was carried out, the law of movement of the cross of the universal joint was established with a known law of rotation of the drive shaft. A method of visual interpretation of the law of motion of the crosspiece is proposed, using the mapping of unit quaternions into a three-dimensional ball with radius 2π.
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Booton, David. "The construction of patent claims." Legal Studies 40, no. 4 (August 17, 2020): 651–74. http://dx.doi.org/10.1017/lst.2020.30.
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AbstractThis paper highlights two recurring facets of the way UK courts approach the construction of patent claims: the adoption of methods typically applied to the interpretation of contracts and the recognition that immaterial variations not expressly claimed nevertheless fall within the scope of protection. Drawing on the normative implications arising out of Ronald Coase's paper on the problem of social cost, this paper argues that the patent system operates as a substitute for an explicit bargain between economically active entities operating in the market under which a duty is accepted by one party in return for acceptance of a burden of risk by the other. This perspective incorporates both the static costs and the dynamic benefits of the system and accords with the monopoly-profit-incentive theory most commonly advanced in support of the patent system. It is shown how the contemporary approach to claims construction is supported by the object of giving effect to the presumed intentions of the parties to this hypothetical bargain and that this underpins both the implication of terms which go beyond those expressly agreed to by parties to a contract and the construction of patent claims so as to embrace immaterial variations not expressly within their scope.
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Richardson, Lorna. "Correction by Construction: Dealing with Drafting Errors by Way of Interpretation." Edinburgh Law Review 27, no. 1 (January 2023): 90–94. http://dx.doi.org/10.3366/elr.2023.0813.
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Stewart, Charlie. "The Rhetorical Canons of Construction: New Textualism's Rhetoric Problem." Michigan Law Review, no. 116.8 (2018): 1485. http://dx.doi.org/10.36644/mlr.116.8.rhetorical.
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New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their opponents’ arguments, and believe their method provides the best plain meaning.
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Baker, H. Robert. "The Fugitive Slave Clause and the Antebellum Constitution." Law and History Review 30, no. 4 (November 2012): 1133–74. http://dx.doi.org/10.1017/s0738248012000697.
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Among the most long-lasting constitutional controversies in the antebellum era was the interpretation of the fugitive slave clause. It was the subject of repeated legislative and judicial construction at both the state and the federal level. It raised delicate questions about federalism and the balancing of property rights and personal liberty. Slaveholders and abolitionists brought irreconcilable constitutional positions to the table, ultimately dividing Northerners from Southerners. However, it was not just divergent political commitments that made it difficult to fix a stable meaning to the fugitive slave clause. The text itself was ambiguous enough to make it amenable to multiple interpretations. For precisely this reason, an examination of the changing interpretations of the fugitive slave clause uncovers antebellum constitutional praxis, allowing us to see how historical actors interpreted the Constitution and how those interpretations shifted over time.
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Waelkens, Johanna. "Belgian Perspective on Rainy Sky S.A. and Others (Appellants) v. Kookmin Bank (Respondent)." European Review of Private Law 21, Issue 5/6 (November 1, 2013): 1319–57. http://dx.doi.org/10.54648/erpl2013079.
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Abstract: In Belgian law, a subjective interpretation of contracts prevails: the common intention of the parties is the vital criterion that governs the construction of agreements. In England the system is more objective, which means the meaning which the document would convey to a reasonable person predominates in matters of contractual interpretation. However, an in-depth analysis of the case Rainy Sky S. A. and others v. Kookmin Bank shows that, in practice, the two systems are more alike than might seem at first sight.
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KIKIMBAYEV, Meiram, Kulshat MEDEUOVA, and Adiya RAMAZANOVA. "MOSQUES IN POST-SOVIET KAZAKHSTAN: DISCOURSE INTERPRETATION AND REGULATORY PRACTICES." CENTRAL ASIA AND THE CAUCASUS 22, no. 4 (December 17, 2021): 126–39. http://dx.doi.org/10.37178/ca-c.21.4.12.
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The authors have analyzed the dynamics of the growth of number of mosques built by religious associations in post-Soviet Kazakhstan and noted a transition from their unregulated and chaotic construction (proliferation) to their precise association with specific maddhabs, and their construction norms conceptualized by religious institutions represented by the Spiritual Administration of the Muslims of Kazakhstan (DUMK). The types of cultic facilities and the actors are discussed and ranked according to the type of their involvement and partnership. We should note that the participation of various actors adds weight to the status of mosques as important public facilities. The authors have paid particular attention to the religious communities’ revised registration realized under the Law of the RK on Religious Activities and Religious Associations of 2011, which optimized the religious space, consolidated the positions of traditional Islam and, hence, standardized the rules related to mosque construction. Keywords: mosque, public space, post-Soviet realities, re-Islamization, re-appropriation, “mosque diplomacy,” religious communities, traditional Islam, DUMK.
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Sholanke, Oladipo O. "Reflections on Some Judicial Decisions on the Construction of the Nigerian Land Use Act." Journal of African Law 37, no. 1 (1993): 89–96. http://dx.doi.org/10.1017/s0021855300011153.
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For this exercise, three of the many new decisions of Nigerian courts on the interpretation of some provisions of the Nigerian Land Use Act have been chosen. Two of the decisions were delivered by the Supreme Court of Nigeria while one was by a Court of Appeal in Nigeria.
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Suud Sarim Karimullah, Mukhid, Zumiyati Sanu Ibrahim, and Muhajir. "Rethinking Gender In Islamic Law." Musãwa Jurnal Studi Gender dan Islam 23, no. 1 (June 29, 2024): 99–113. http://dx.doi.org/10.14421/musawa.2024.223.99-113.
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In the study of feminist hermeneutics, gender construction in Islamic law tries to bridge the gap between the dominant patriarchal norms in interpreting traditional Islamic law and modern society regarding gender equality for social justice. By exploring the classical literature and contemporary Islamic legal text, this study focuses on the problems of gender construction through the lens of feminist hermeneutics in Islamic law. The pattern in this feminist hermeneutic approach not only expands but also deepens the understanding of paradigmatic changes in gender construction in the framework of Islamic law. This perspective introduces a new idea for exploring gender construction within the legal framework. This approach challenges the dominant patriarchal interpretation of Islamic law, particularly women's roles and rights. This social change can be perceived in an inclusive view more responsive to gender issues.[ Dalam kajian lensa hermeneutika feminis, konstruksi gender dalam hukum Islam berupaya menjembatani kesenjangan antara norma-norma dominan patriarki dalam interpretasi hukum Islam tradisional dan tuntutan masyarakat modern dalam kesetaraan gender demi keadilan sosial. Dengan menggali sumber pustaka teks-teks hukum Islam klasik dan kontemporer maupun literatur akademik yang relevan, paper ini mengulas lebih lanjut permasalahan kostruksi gender dalam kacamata hermeneutika feminis pada hukum Islam. Pola kajian dalam pendekatan hermeneutika feminis ini tidak hanya memperluas tetapi memperdalam pemahaman perubahan paradigmatik konstruksi gender dalam kerangka hukum Islam. Penerapan perspektif ini membuka wilayah baru bagi eksplorasi konstruksi gender dalam kerangka hukum tersebut. Pendekatan ini menantang fondasi interpretasi patriarkal yang dominan dalam hukum Islam, khususnya terkait peran dan hak-hak perempuan. Perubahan sosial terlihat dalam pandangan inklusif yang lebih responsif terhadap isu gender.]
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Asmarudin, Imam. "Struggle of Legal Positivism Versus Progressive Thoughts in the Formal Tests of the Job Creation Act (Legal Development through Hermeneutics)." Jurnal Dinamika Hukum 22, no. 1 (July 25, 2022): 124. http://dx.doi.org/10.20884/1.jdh.2022.22.1.3178.
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Hermeneutics is a form of interpretation and interpretation of a text in legal philosophy, in practice it is also used in the considerations of constitutional judges to interpret and interpret a law, one of which is in the formal examination of the work copyright law which is the pros and cons because using the Omnibus Law method. This study aims to find out how the struggle between positivistic and progressive legal thinking and the reality of the art of hermeneutics as a means of legal development, the research method uses the legal research method through the statute approach, conceptual approach, and case approach, the data analysis is descriptive qualitative, the research results show The struggles of Legal Positivism and Progressive Thought in the decision actually met at one point, both of them acknowledged that Omnibus Law was a method of future legislation formation and interpretation through the art of Hermeneutics became a means of making a legal construction, which in the end could become a means of developing law forward.Keywords: hermeneutics; legal positivism; omnibus law; progressive
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Pavčnik, Marijan. "Interpretation as a Value (RE)Construction of the Legal Norm." Baltic Journal of Law & Politics 9, no. 2 (December 1, 2016): 43–55. http://dx.doi.org/10.1515/bjlp-2016-0011.
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Abstract In the context of a normative concretisation of the statute, the term “statute” is not synonymous with the law that can be repeated in light of a concrete case. In this context, the interpreter is the one who (1) “reconstructs” the possibilities contained in the statute, (2) articulates more precisely the contents of these possibilities, and (3) chooses the combination of possibilities that corresponds most closely to the legally relevant features of the life case (which also must be interpreted). Thus the interpreter’s productivity consists in recognizing a legal provision as referring to a type of conduct − for example, as recognizing that the statutory signs “exceeding the speed limit” refer to, inter alia, a type of behaviour known as driving a car too fast through a town. Moreover, the decision-maker has decided the case just this way, which means it is the decision-maker and not the “statutory text” that has excluded the possibility of any other legal solution (e. g. of driving too fast in a state of emergency). The statute refers to cases that will only occur in the future and are at the present moment, in a more or less defined way, envisaged by the legislator. Irrespective of the extent and intensiveness of the envisaging, the interpretation must remain true to the core meaning of the norm and to the semantic possibilities of the statute text.
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Markert, Lars, and Raeesa Rawal. "Emergency Arbitration in Investment and Construction Disputes: An Uneasy Fit?" Journal of International Arbitration 37, Issue 1 (March 1, 2020): 131–42. http://dx.doi.org/10.54648/joia2020005.
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This article examines the compatibility of emergency arbitration with (1) investment treaty disputes and (2) construction disputes, respectively. The article begins by giving a brief synopsis of the evolution of emergency arbitration, following which its suitability to investment treaty disputes and construction disputes is considered. The authors provide critical analysis of the compatibility of the emergency arbitration procedure with pre-arbitral requirements in both of these categories of disputes. The authors conclude that the practices surrounding emergency arbitration need to be developed further, and specifically, the issues surrounding enforcement need to be resolved. Emergency Arbitration, Construction Arbitration, Investment Treaty Arbitration, Enforceability, Third Parties, Dynamic Interpretation of Consent, Cooling-off Clauses, Multi- Tiered Dispute Resolution Clauses
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He, Houyi, and Jia Zeng. "Reflection and Improvement of the Principle of Treating Invalid Construction Contracts as Valid in the View of Civil Law." Asian Journal of Social Science Studies 7, no. 1 (January 25, 2022): 1. http://dx.doi.org/10.20849/ajsss.v7i1.979.
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After the construction project is completed, if the contract is judged as invalid by the court at this time, it will involves the application of Article 157 of the Civil Code of People’s Republic of China: For example, how to return the completed construction, how to compensate for the discount if it cannot be returned, and what standard should be adopted for the discount compensation. In order to solve the above problems, the Supreme People's Court issued the "Interpretation on the Application of Law to the Trial of Construction Contract Disputes" (hereinafter referred to as "Interpretation"), which mentions that the above problems should be regulated in judicial practice through the invalid construction contract "treated as valid". However, the principle encounters many difficulties both in theory and practice. For example, how to avoid its counterproductive effect of encouraging the signing of invalid contracts to destroy the market order, whether to use the contractual standard or the engineering quota standard in the project settlement, and how to interpret the scope of "effective" to better protect the rights and interests of the parties. This paper mainly discusses the background of the development of construction industry from 2005 to 2020, the definition of the principle of invalid building construction contract, the applicable situation, the limitations in theory and practice, and the final reflections and countermeasures.
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Khiluta, Vadim V. "The intellectual element of intent and its interpretation." Yugra State University Bulletin 19, no. 3 (November 1, 2023): 94–103. http://dx.doi.org/10.18822/byusu20230394-103.
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Subject of research: the article considers the question of the essence of the intentional form of guilt. Aspects of understanding the intellectual component of the intentional form of guilt under the criminal law of Russia and Belarus are outlined.
Purpose of research: to determine the essence of the intellectual component of the intentional form of guilt and aspects of the interpretation of direct and indirect intent by the law enforcement officer.
Methods and objects of research: traditional methods of socio-legal and formal dogmatic analysis were used during the research: documentary, historical and legal, analytical, systematic, logical.
Main results of research: the author states that the awareness of public danger and illegality has a different explanation within the framework of criminal and administrative-tort law. However, in their essence, these concepts have the same purpose. The presence of double criteria regarding the difference between direct intent and indirect in criminal law levels the volitional component of guilt, because desire is always replaced by foresight, which necessarily expands the boundaries of direct intent. The construction of the subjective side of the corpus delicti contained in the criminal law (Article 25 of the Criminal Code of the Russian Federation) allows us to assert that today the content of the volitional sign of an intentional form of guilt is determined based on the content of the intellectual sign of intent. This is wrong, because the main difference between direct intent and indirect intent should be based on the volitional component of guilt.
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Opwis, Felicitas. "The Construction of Madhhab Authority: Ibn Taymiyya's Interpretation of Juristic Preference (Istihsān)." Islamic Law and Society 15, no. 2 (2008): 219–49. http://dx.doi.org/10.1163/156851908x290592.
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AbstractThis essay analyzes Ibn Taymiyya's discussion of juristic preference (istihsān) as a valid method of law-finding. Ibn Taymiyya rejects the interpretation of leading Hanbalīs of juristic preference as contrary to analogy and explains it instead as specification of the ratio legis (takhsīs al-'illa). His changed understanding of juristic preference leads him to re-interpret several of Ibn Hanbal's rulings that are based on this legal principle. How Ibn Taymiyya does this is illustrated with Ibn Hanbal's ruling on usurpation of agricultural land. Ibn Taymiyya does not question the actual ruling but rather rejects the rationalization adduced for it by previous Hanbalīs, such as Abū Ya'lā and Ibn 'Aqīl. By attributing his own position to Ibn Hanbal, Ibn Taymiyya undermines the authority of earlier prominent Hanbalīs, increases the authority of the eponym of the school, and enhances his own position as the living heir of Ibn Hanbal.
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Hidayati, Tri, Syarifuddin Syarifuddin, Ibnu Elmi AS Pelu, Syaikhu Syaikhu, Mohammad Azam Hussain, Mohd Zakhiri Md Nor, and Alias Azhar. "MEKANISME PENGGUNAAN JAMINAN KEBENDAAN (RAHN TASJILY) DALAM PEMBIAYAN BANK SYARIAH DI INDONESIA DAN MALAYSIA." Nurani: Jurnal Kajian Syari'ah dan Masyarakat 18, no. 1 (July 17, 2018): 163–82. http://dx.doi.org/10.19109/nurani.v18i1.2458.
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The main objective of this legal research is to compare the legal construction and the use of “rahn tasjily” mechanism in the Sharia bank financing between Indonesia and Malaysia through law, concept, and history approaches. The data were analyzed qualitatively by systematic interpretation and historical interpretation. The results are: 1) Both countries do not have a strong regulation in Sharia guarantees, thus the law construction is implemented by harmonization and integration between Sharia principles and conventional regulations (civil). The differences are in the concept, the division of rahn, and the law substance in the Sharia banking complement regulation. 2) The mechanism is also different, where in Indonesia the guarantee should be bound by an authentic certificate (notary) and registered in the authority institutions in order that Sharia bank (murtahin) obtains a strong law protection beside an insurance. While in Malaysia, the use of collateral is only included in the financing contract without an authentic certificate; the registration is not compulsory and the ownership proof of guarantee (marhun bih) as well as the object is in rahin permanently (except a land); and the collateral strength for Sharia bank is an insurance.
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Bederman, David J. "Medellín’s New Paradigm for Treaty Interpretation." American Journal of International Law 102, no. 3 (July 2008): 529–40. http://dx.doi.org/10.2307/20456641.
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Much of the scholarly attention given to the U.S. Supreme Court’s March 2008 decision in Medellín v. Texas has focused on the Court’s supposed ruling as to the presumptive nonself-execution of international agreements entered into by the United States, and the power of the president to implement such agreements without an act of Congress. Less heed has been paid to the impact and implications of the Court’s reasoning and analysis in interpreting the four international agreements at issue in the case: the 1945 United Nations Charter and Statute of the International Court of Justice, and the 1963 Vienna Convention on Consular Relations and its Optional Protocol. Although the Court’s analysis of the self-execution questions is beyond the scope of my contribution to this Agora, I acknowledge that the jurisprudence of treaty interpretation fits uncomfortably with the calculus of an international agreement’s selfexecution into U.S. law. And while it may seem obscure to view the Medellín decision through the lens of treaty interpretation, that is what truly brings its importance into focus, so that its impact may ultimately be seen as clarifying the established norms of U.S. foreign relations law, particularly in the selection of appropriate sources for treaty construction and the deference to be granted to various foreign relations actors and institutions.
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Brudner, Alan. "The Unity of Property Law." Canadian Journal of Law and Jurisprudence 4, no. 01 (January 1991): 3–66. http://dx.doi.org/10.1017/s0841820900001260.
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This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.
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Terekhov, Evgeny. "The Official Interpretation of Legal Norms as a Tool for Building the Russian Rule of Law." Legal Concept, no. 2 (July 2022): 112–17. http://dx.doi.org/10.15688/lc.jvolsu.2022.2.14.
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Introduction: the practical implementation of the idea of the rule of law requires the fullest provision of human and civil rights and freedoms, as well as restrictions on the right of state power. Despite the existence of the necessary legislative framework, contradictions and uncertainties periodically arise in the legal activity regarding the ways of further implementation of the law. The official interpretation of the norms of law helps to cope with this task, which allows for clarity and semantic certainty in the legal regulation processes. Purpose: the demonstration of the use of the official interpretation of legal norms as an independent means of maintaining the efficiency of the rule of law. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are systematic, analysis, statistical, historical. Results: the author’s position substantiated in the work is based on the study of the place and practice of using the official interpretation of the legal norms in the construction and maintenance of legal statehood. This is facilitated by the analysis of signs of the rule of law, the normative statistical data, the judicial law enforcement practice, as well as the individual interpretative acts. Conclusions: as a result of the conducted research, it is found that the role of the official interpretation of the legal norms as a tool to promote the efficiency of the rule of law is invaluable and irreplaceable. In fact, the official legal interpretation today is one of the most effective non-alternative means of not only revealing the meaning of laws, but also increasing trust and respect for the law, its knowledge and acceptance as a priority regulator of public relations. The idea of a rule-of-law state will remain an idea, without the use of legal interpretation activities in the legal sphere of society.
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Augustyniak, Łukasz. "Keeping up Appearances: May the Law of International Responsibility be construed through the ‘Comparative Law’ Methods?" Polish Review of International and European Law 10, no. 1 (April 21, 2021): 43–74. http://dx.doi.org/10.21697/priel.2021.10.1.02.
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The article analyses the possible employment of comparative law methodology for the codification, progressive development and the interpretation of the law of international responsibility. It argues that ‘comparative law’ methodology should be used during this process as it would enhance the legitimacy and understanding of the work of the International Law Commission. The use of legal English involves the reference to common law ideas whether it is consciously admitted or not by the users of legal rules drafted in that language. This concept is presented by the reference to the way the language is used in the process of creating and interpreting rules in the area of international responsibility. It also plays an important role during the construction of multicultural internationallegal concepts within that field. Last but not least, the use of ‘comparative law’ seems to be an indispensable apparatus in the codification process in the area of international responsibility consisting of general principles of law and customary law. The ‘comparative law’ methods are invaluable tools for all those who take part in creation of international responsibility rules, as well as their application and interpretation.
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Doliwa, Adam, and Katarzyna Doliwa. "Axiological and philosophical perspectives of distinguishing private law (against the back-ground of public law)." Eastern European Journal of Transnational Relations 7, no. 2 (2023): 49–57. http://dx.doi.org/10.15290/eejtr.2023.07.02.06.
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The article presents the philosophical concepts and axiological foundations that affect the understanding of the concept of private law and also justify the orderly distinction in the legal system between private and public law. In particular, the considerations contained in the following work answer the question of how universal philosophical and humanistic concepts, as well as principles and values such as human dignity and freedom, for example - influence the modern legislator and the understanding of private and public law. The authors also establish how philosophical and axiological criteria affect the relationship between private and public law, in particular, how such criteria, in the processes of interpretation and application of law, allow the construction of a coherent and complementary "legal order."