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Journal articles on the topic 'Legal rule'
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Hage, Jaap. "Legal Reasoning and Legal Integration." Maastricht Journal of European and Comparative Law 10, no. 1 (March 2003): 67–97. http://dx.doi.org/10.1177/1023263x0301000104.
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According to Legrand, harmonization of European private law by means of a European Civil Code would not work, because of the different legal cultures (mentalités) within which such a code would have to operate. In the civil law tradition, legal reasoning on the basis of such a code would be deductive in the sense of the application of rules that are posited prior to the cases to which they should be applied. In the common law tradition, the starting point of legal reasoning is in the cases themselves. As a consequence, common law reasoning would abstract less from the peculiarities of individual cases. The main point of this paper is that Legrand's picture of civil law reasoning is based on the subsumption model of rule application, which does not allow adaptation of the law to the needs of concrete cases other than through the limited possibilities of interpretation. It is argued that this picture is wrong. As an alternative, the reason-based model of rule application is proposed, which allows legal decision makers much more leeway to tailor the law to the needs of concrete cases. In a comparison with case-based reasoning it is argued that rule-based reasoning, according to the reason-based model, gives the decision maker the same leeway. The final conclusion is that possible differences in legal culture between the civil law and the common law tradition are not rooted in the distinction between rule-based reasoning and case-based reasoning, and are therefore merely contingent. There is no reason why the introduction of a European Civil Code could not overcome the differences between the two traditions. Whether this would be desirable is a different question.
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Shumanovska-Spasovska, Ivana, and Konstantin Bitrakov. "Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia." SEEU Review 11, no. 1 (December 1, 2015): 86–98. http://dx.doi.org/10.1515/seeur-2015-0012.
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Abstract One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.
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Cholho Choi. "The systemicity and legitimacy of Japanese administrative rule." KOOKMIN LAW REVIEW 28, no. 3 (February 2016): 543–72. http://dx.doi.org/10.17251/legal.2016.28.3.543.
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Halberstam, Chaya. "Legal Justice or Social Justice?" Journal of Ancient Judaism 7, no. 3 (May 14, 2016): 397–422. http://dx.doi.org/10.30965/21967954-00703006.
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This article aims to read closely the tannaitic material pertaining to judicial discretion and legal justice with the understanding that the rabbis are not simply clarifying certain specialized questions about courtroom procedure but are seriously engaging a core facet of Roman imperial and Hellenistic ideology: the benefits and deficits of the rule of law. It has been noted that as opposed to later, talmudic rabbis, the Tanaaim are particularly strict with regard to personal, judicial discretion – in other words, that rather than strike a balance between law and wisdom, they allow only for rule-based decision making. This article suggests that the Tanaaim not only opt for rule-bound decision making, but that they do so with a full awareness of what is lost from broader ideals of social justice when judges are required to abide, almost mechanically, by the rules. The Tanaaim thereby contributed to contemporary questions in political philosophy from the point of view of disempowered Roman provincials for whom the rule of law meant less as political propaganda and more as a measure of stability in uncertain times.
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Dzeiko, Zh O. "Legal technique of interpretation of the law: theoretical and legal aspecks." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 62–66. http://dx.doi.org/10.33663/2524-017x-2021-12-10.
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In her work, the author proposes a system of means, methods, techniques and rules for the exercise of legal activity by subjects of law to understand and, if necessary, to explain the content of the law, aimed at obtaining a legal result. It is true that the main features of legal technology for the interpretation of norms of law are: it is a relatively autonomous element of the legal situation, which derives from its qualitative and quantitative characteristics; The essence of the legal technique of interpreting norms of law is that it corresponds to the essence of the law and the level of development of the legal system; its application is carried out as a result of the thoughtful, willful activity of subjects of law; The content of the legal technique for interpreting the law includes a system of means, means, techniques and rules for understanding and, where necessary, explaining the law; In the form in which its content is expressed, the legal technique of interpreting the rules of law is embodied in certain means, methods, techniques and rules; the legal technique of interpreting the rules of law may be classified into types; The role and importance of the legal technique in the interpretation of norms of law is revealed in the law-making and in the implementation of norms; the legal technique of the interpretation of norms of law is mainly based on the achievements of the legal science, namely the theory of law; The application of the legal technique to the interpretation of the law must be within the limits of the law. The legal technique of interpreting the norms of law should serve to affirm, safeguard and realize human and civil rights and freedoms. The essence and social function of legal technology in the interpretation of norms of law is manifested in law-making and in the implementation of norms of law. Keywords: rule of law, law-making, realization rule of law, interpretation rule of law, legal technique, legal technique of interpretation of the law
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LAX, JEFFREY R. "Constructing Legal Rules on Appellate Courts." American Political Science Review 101, no. 3 (July 26, 2007): 591–604. http://dx.doi.org/10.1017/s0003055407070347.
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Appellate courts make policy, not only by hearing cases themselves, but by establishing legal rules for the disposition of future cases. The problem is that such courts are generally multimember, or collegial, courts. If different judges prefer different rules, can a collegial court establish meaningful legal rules? Can preferences that take the form of legal rules be aggregated? I use a “case-space” model to show that there will exist a collegial rule that captures majoritarian preferences, and to show that there will exist a median rule even if there is no single median judge. I show how collegial rules can differ from the rules of individual judges and how judicial institutions (such as appellate review and the power to write separate opinions) affect the stability and enforceability of legal rules. These results are discussed in light of fundamental debates between legal and political perspectives on judicial behavior.
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이보미. "A Study on the Suitability Rule of Variable Insurance." KOOKMIN LAW REVIEW 28, no. 2 (October 2015): 169–215. http://dx.doi.org/10.17251/legal.2015.28.2.169.
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Nurlaelawati, Euis. "Menuju Kesetaraan dalam Aturan Kewarisan Islam Indonesia: Kedudukan Anak Perempuan versus Saudara Kandung." JURNAL INDO-ISLAMIKA 2, no. 1 (June 26, 2015): 75–90. http://dx.doi.org/10.15408/idi.v2i1.1653.
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As response to the demand on women’s legal development, through the KHI Hukum Islam, Indonesia introduced a number of legal reforms on familial issues, including inheritance. Several legal reforms on inheritance issues include the rule of ahli waris pengganti, the rule of wasiat wajiba (obligatory bequest), and the rule of the share of daughters versus collaterals. These novel rules were introduced as to meet the demands of both solving contemporary legal issues and of empowering women to put them in equal position as men. This paper discusses the detailed rule on the share of daughter(s) when meeting collaterals in the case of inheritance as put forward in the KHI and its departure from the classical legal doctrines as found in fiqh texts. Using both bibliographical and field researches, which involve interviews with several judges and observation on judges’ decisions, this paper discovers that some judges continued to refer to classical legal doctrines and neglect the rule in the KHI. It also displays that there have been debate on the rule within both judges and legal scholars, demonstrating that the rule does not have firm legal Islamic rationale.
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Rodziewicz, Piotr. "Niejednoznaczne podstawy stosowania przepisów wymuszających swoje zastosowanie (przepisów koniecznego zastosowania)." Problemy Prawa Prywatnego Międzynarodowego 24 (June 30, 2019): 169–87. http://dx.doi.org/10.31261/pppm.2019.24.07.
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The article raises issues concerning legal basis for the application of the overriding mandatory rules. In the Polish doctrine there are two opposing concepts in terms of explanation of the legal grounds for application of overriding mandatory rules. Both theories do not have a universal dimension, in the sense that they do not sufficiently explain the basis for the application of domestic as well as foreign overriding mandatory rules, being part of lex causae or coming from a third state. The article presents arguments for and against the possibility of deriving the legal grounds for application of the overriding mandatory rules, with reference to submissions made to that effect in literature. The author makes also an attempt to formulate a concept complementary to the concept of an integrated conflict-of-law rule with the substantive law rule, boiling down to the assumption that the basis for application of overriding mandatory rule is a second degree conflict of laws rule allowing to apply a first degree conflict of laws rule integrated with the substantive rule.
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김택주. "The over the count trade of Derivative and Suitability rule." KOOKMIN LAW REVIEW 29, no. 2 (October 2016): 9–54. http://dx.doi.org/10.17251/legal.2016.29.2.9.
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Tank, Helen. "Living with the Rules: Gender and the Rule of Law in Herodotus’ Histories." Studia Iuridica 80 (September 17, 2019): 389–403. http://dx.doi.org/10.5604/01.3001.0013.4820.
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What does “the rule of law” mean to an ancient historian, Herodotus? This paper uses modern legal theories and a sociological model to consider how he presents the concept in his Histories. The author takes a novel approach in that she considers the rule of law from a gender perspective. She argues that law is as much about social and cultural rules, which involve women as much as men, as it is about institutional practices which exclude women and reinforce an ideology of female inferiority. She also shows that the rule of law is a powerful normative ideal which Herodotus uses to interrogate power. The author uses the theoretical model of law developed by the English legal scholar HLA Hart, who argues that rules have a social as well as a legal dimension (the “internal” view of law), that is, how rules are perceived by community members, and how normative behaviours are enforced by that community. She also uses the work of a legal anthropologist, Leopold Pospίčil, and feminist legal theory, to argue for a wider definition of the rule of law than that used by most contemporary scholars. She uses three case studies to show that the rule of law is a powerful force in the Histories precisely because it combines external coercive force, internal rule of conduct and normative ideal.
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Тихонравов, Евгений, and Evgeniy Tikhonravov. "The specificity of extensive and restrictive interpretations of the law." Advances in Law Studies 4, no. 3 (October 27, 2016): 13–17. http://dx.doi.org/10.12737/21649.
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Some scholars maintain that all legal rules are subject to extensive and restrictive interpretation. Others argue that certain kinds of legal norms cannot be construed in this way. The author attempts to resolve this contradiction. The findings suggest a rule for determining when extensive or restrictive interpretation of a particular legal rule is acceptable.
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Porges, Amelia. "United States: Foreign Legal Consultant Rules of California, The District of Columbia and New York." International Legal Materials 26, no. 4 (July 1987): 977–97. http://dx.doi.org/10.1017/s002078290002595x.
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On April 2, 1987, California's new rules on licensing of foreign legal consultants came into effect, joining the foreign legal consultant rules in New York, the District of Columbia, Michigan, and Hawaii [Rule 988, Cal. Rules of Court; N.Y. Ct. App. R. for Licensing of Legal Consultants, 22 N.Y.C.R.R. Part 521; Rule 46 (c) (4), D.C. Ct. App.; Rule 5 (E), Mich. Bd. of L. Exam'rs; Rule 14, Sup. Ct. of Hawaii]. The California, New York and District of Columbia rules are reprinted here. In addition, a foreign legal consultants proposal is now under active consideration in Texas.The table following this note summarizes the provisions of the five foreign legal consultant rules with regard to eligibility for admission, the scope of practice permitted the foreign legal consultant, and professional discipline. In the United States, it is unconstitutional for a state to deny admission to the bar by reason of citizenship (In re Griffiths, 413 U.S. 717 (1973). State residency requirements are also unconstitutional as applied to citizens of other states (Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). State bar examination pass rates range from 40% to 99%; a substantial number of foreign lawyers have been admitted to the bar by passing the bar examination. As of June 1, 1987, over 70 foreign legal consultants had been licensed in New York, and none in other jurisdictions (one application was pending).
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Sergeev, V. N. "Standard Behavior under Legal Control: A Behavioristic Approach." Reflexio 12, no. 2 (2019): 43–59. http://dx.doi.org/10.25205/2658-4506-2019-12-2-43-59.
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The standard behavior based on the so-called legal type of control is considered. The mechanisms of modeling of required behavior through standard rules, ways of increasing its probability, tools of transfer of behavior in various situations are analyzed. The distinction of patterns of individual behavior, as well as its social forms facilitating the cumulative effect is made. The standard rules prescribe a order of actions in any situation. The standard regulation of behavior structurally reproduces the model of control of behavior due to existing consequences (i.e. includes guideline of conditions, expected behavior and its result) and can be analyzed with the help of the so-called ABC-scheme or formula SD-R-C. It is indicated the functional role of the rule in the type of operation behavior. Moreover, it is mentioned the complexity of rule-governed behavior identification in the line of other behavior acts. The analysis of rule essence is paid a lot of attention to.
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Sergeev, V. N. "Standard Behavior under Legal Control: A Behavioristic Approach." Reflexio 12, no. 2 (2019): 43–62. http://dx.doi.org/10.25205/2658-4506-2019-12-2-43-62.
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The standard behavior based on the so-called legal type of control is considered. The mechanisms of modeling of required behavior through standard rules, ways of increasing its probability, tools of transfer of behavior in various situations are analyzed. The distinction of patterns of individual behavior, as well as its social forms facilitating the cumulative effect is made. The standard rules prescribe a order of actions in any situation. The standard regulation of behavior structurally reproduces the model of control of behavior due to existing consequences (i.e. includes guideline of conditions, expected behavior and its result) and can be analyzed with the help of the so-called ABC-scheme or formula SD-R-C. It is indicated the functional role of the rule in the type of operation behavior. Moreover, it is mentioned the complexity of rule-governed behavior identification in the line of other behavior acts. The analysis of rule essence is paid a lot of attention to.
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Garvie, Devon A., and Barton L. Lipman. "Regulatory Rule-Making with Legal Challenges." Journal of Environmental Economics and Management 40, no. 2 (September 2000): 87–110. http://dx.doi.org/10.1006/jeem.1999.1108.
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Niblett, Anthony, Richard A. Posner, and Andrei Shleifer. "The Evolution of a Legal Rule." Journal of Legal Studies 39, no. 2 (June 2010): 325–58. http://dx.doi.org/10.1086/652908.
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Nykolyna, K. V. "Legal procedure of official interpretation of legal texts." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 200–204. http://dx.doi.org/10.33663/2524-017x-2021-12-34.
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The scientific article is devoted to the substantiation of the procedural nature of the official interpretation of legal texts. The author emphasizes that it is on the official interpretation that legally significant decisions are based, which establish the specific rights and obligations of the subjects. However, today there are no systematized methodological recommendations, requirements, officially established legal procedure and principles of interpretive activity, which could determine common standards of official interpretation. The procedure of interpretation consists in the sequence of actions of the authorized subjects within separate stages.The article formulates the author’s definition of legal interpretation procedure as a system of successive legally significant actions of authorized entities, which are aimed at clarifying, constructing and explaining to other legal entities the meaning and scope of legal norms formulated in legal texts. Taking into account the latest methodological approaches to interpretation and the requirements of the rule of law,the author reveals the content of legal interpretation, which consists of separate stages, which in turn include a number of successive procedures. In particular, the stage of clarifying the content of the legal text involves the following procedures: initial study of the legal text and the form of its consolidation in the provisions of the legal act, comprehensive analysis of the legal text, analysis of the received interpretation in terms of justice, human rights, rule of law, design normative rule. The explanation, according to the author, includes the following procedures: preparation of a draft interpretative act, namely a legal document that contains an explanation of the content and application of the legal norm, formulated by the authorized body within its competence; adoption of a legal interpretation act, making it universally binding for all those who apply the clarified rules of law; promulgation of an interpretative act, namely, bringing its content to the attention of society or law enforcement agencies; control over the use of the act of interpretation of the law by the subjects of its application; generalization of legal interpretative acts in order to systematize them. Given the importance of official interpretation of legal texts, the feasibility of determining at least the general principles of legal interpretation at the regulatory level is considered. Keywords: interpretation of law, official interpretation, legal procedure, legal interpretation activity.
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Krasnov, Eduard Vladimirovich. "The Rule of Law and Legal Act: Comparative Legal Analysis." Общество: политика, экономика, право, no. 4 (2021): 64–66. http://dx.doi.org/10.24158/pep.2021.4.11.
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Luthfi, Muhammad, and Yohana Wardoyo. "NADZIR REGISTRATION REGULATION TO THE INDONESIAN WAQF BOARD WITH A POSITIVE LEGAL PERSPECTIVE AND ISLAMIC LAWm Islam." Legal Standing : Jurnal Ilmu Hukum 4, no. 2 (October 8, 2020): 190. http://dx.doi.org/10.24269/ls.v4i2.2839.
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Regulation of nadzir registration to Indonesian Waqf Agency (BWI) is a new rule about Waqf in Indonesia. This rule has a different push point in the rules, the rule of law using the word "must" as its registration regulation, And the rules of implementation use the word "mandatory". The use of the word "obligatory" is also not followed by the sanction of the rules. This study explains the regulation of the registration of Mucconsulting to BWI's perspectives on positive laws and Islamic law. The problem formulation, how the regulation of registration of nadzir to BWI is reviewed from the rules of the positive law and the rule of Islamic law? This research is a normative study. Research results, The regulation of registration of Mucconsulting to BWI is reviewed from the positive legal rules, content is a rule that contains orders, the nature of the rule is the Factative law. According to Islamic law via ushuliyyah rules it goes into the aspect of amr (command), That do not have to be, In qiyas the order of the rules equals the order of Hajj.
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Spearman, DeCarlous Y. "Citing Sources or Mitigating Plagiarism: Teaching Law Students the Proper Use of Authority Attribution in the Digital Age." International Journal of Legal Information 42, no. 2 (2014): 177–219. http://dx.doi.org/10.1017/s0731126500012038.
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Learning the rules of legal citation is a challenge for new and seasoned legal researchers alike. Good instruction and practice are required to master these rules. Think about the first sport you learned to play. Did you master all the rules the first time you played the game? Do most people even read a rule book when learning to play a new sport? Initially, it is a challenge for any player learning the game to follow all of the rules correctly. Generally, only coaches study the rule book. The rules of the game are very important so coaches and players know what is and is not permitted “on the field.”Most rules are disseminated orally and learned through practice. Law professors who teach legal research or supervise legal writing are the coaches in the game of legal citation; they must disseminate the rules to their students. The professors have a duty to stimulate a student's mastery of legal citation rules to meet the proficiency required of legal writing in the profession. Law students who do not master the rules of legal citation are more likely to plagiarize.
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Van Hoecke, Mark, and François Ost. "Legal doctrine in crisis: towards a European legal science." Legal Studies 18, no. 2 (June 1998): 197–215. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00013.x.
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Legal doctrine has two aims: describing and systematising the law. The description of currently valid law within a given legal system is the most visible and, from a quantitative point of view, the most important task for legal doctrine. From a qualitative point of view, however, systematisation of the law is by far its most important task. Systematisation is the construction of a conceptual framework of the law, which is a necessary basis for any legal rule and for any legal reasoning. Systematisation presupposes a description of the rules, principles, concepts, etc, which are to be systematised. But description of the rules is impossible without the conceptual framework that the systematisation of the law offers. Even the law itself is based on this conceptual framework. Codifications, such as theCode Napoléonor the GermanBürgerliches Gesetzbuch,were made possible because of the centuries-long preparatory work of legal doctrine.
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Pill, Shlomo C. "Leveraging Legal Indeterminacy." Journal of Law, Religion and State 6, no. 2-3 (May 18, 2018): 147–94. http://dx.doi.org/10.1163/22124810-00602002.
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This article offers one response, rooted in traditional Jewish and Islamic perspectives of what it means to have a rule of law, to the problem of indeterminacy in Western jurisprudence. Some Jewish and Muslim scholars have conceptualized the rule of law not as a system of objective, democratic, prospective, stable, and equally applied substantive norms, but as the commitment of the legal community to be broadly and deeply engaged with studying, interpreting, and applying the materials and methods of their legal tradition as the principal source of normative conduct. This way of thinking about law, which I call “law-as-engagement,” has been deployed by Jewish and Muslim scholars to leverage the incidence of indeterminacy, disagreement, and judicial subjectivity in law for the purpose of reinforcing rather than undermining the rule of law.
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Eunro Lee and Kwangbai Park. "Psychological and Legal Issues in Jury Decision Rule(Ⅱ)─ty Rule Versus Majority Rule." Korean Journal Of Criminology 19, no. 1 (June 2007): 113–51. http://dx.doi.org/10.36999/kjc.2007.19.1.113.
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Peña Neira, Sergio. "Interpretation and Application of International Legal Obligation in a National Legal System: Taking Seriously Benefit Sharing from the Utilization of Genetic Resources in India." Anuario Mexicano de Derecho Internacional 1, no. 17 (March 14, 2017): 652. http://dx.doi.org/10.22201/iij.24487872e.2017.17.11048.
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In taking seriously the interpretation and application of international obligations on sharing of benefits equitably on genetic resources, India has decided for a law, rules and guidelines to define equitableness as well as a “case by case” assessment. In doing so, lessons from various cases in which (un)successfully benefits have been shared as well as the rule of application of Article 15.7 of the Convention on Biological Diversity (rules should be enacted as well as policies and “other measures”) were considered in a national Act on this subject. The process of law creation as a consequence of incorporation, therefore, is a dual process: interpretation (of a general international legal rule to determine specifically the national requirements to fulfil vague terms used in the rule) and, at the same time, application of these international rules (by enacting national legal rules defining the objects of legal regulation established by the treaty). Interpretation and application of article 15.7 in India has been defined ruling beyond obligation establishing legal objects and subjects, equitableness, fairness of sharing benefits and standards for a final amount, basically, detailing legal requirements and defining “equity” and “justice” as distribution, synallagma and procedure.
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Warner, K. A. "Judicial reasoning and precedent: negligently inflicted psychological injuries." Legal Studies 10, no. 1 (March 1990): 63–79. http://dx.doi.org/10.1111/j.1748-121x.1990.tb00029.x.
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English common law is often understood to provide for the resolution of social disputes predominantly by resort to legal rules. Whilst there may be initially reasons for a rule which do not constitute legal reasons, once the rule becomes promulgated in a statute or is embodied in a judgment of a higher court then the application of the rule in future cases is justified by that very promulgation or embodiment. No further appeal to the social reasons originally behind the rule, what might be referred to as the ‘primary reason’ for a rule, is necessary. According to the theory any subsequent dispute to which the rule is addressed will be resolved one way or the other because there exists a distinctly legal reason for reaching that decision which is independent of the content of law and independent of, for example, social or moral considerations.
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Engle Merry, Sally. "The Rule of Law and Authoritarian Rule: Legal Politics in Sudan." Law & Social Inquiry 41, no. 02 (2016): 465–70. http://dx.doi.org/10.1111/lsi.12197.
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Does the rule of law guarantee peace and democracy, as so many people in the development and governance field believe? What are the historical and sociocultural conditions that shape the way rule of law mechanisms work in practice? Mark Massoud's monograph tracing the changing dimensions of the rule of law in Sudan from its colonial period to the present offers an important perspective on these questions, casting doubt on the simple argument that the rule of law produces democracy and peace. Instead, he shows how colonial and authoritarian rulers used the rule of law to consolidate power and legitimate their rule. In Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan, Massoud develops the concept of legal politics, arguing that the way the rule of law works varies with the political system in which it is embedded. He concludes that the forms of legal politics that reinforce the power and authority of legal institutions are more likely to sustain an authoritarian state than to bring democratic rule. His analysis is a valuable caution to those who promote the rule of law as the salvation for all. Taking a sociolegal perspective, he shows how it works in practice.
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김펭. "The Revision Approach to the Absolute Priority Rule in Chinese Bankruptcy Reorganization Law." KOOKMIN LAW REVIEW 26, no. 2 (October 2013): 83–114. http://dx.doi.org/10.17251/legal.2013.26.2.83.
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Unurbayar Chadraabal. "New trend of comparative law and formation of rule of law on Mongolia." KOOKMIN LAW REVIEW 27, no. 1 (June 2014): 175–96. http://dx.doi.org/10.17251/legal.2014.27.1.175.
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Nurgozhayeva, Roza. "Rule-Making, Rule-Taking or Rule-Rejecting under the Belt and Road Initiative: A Central Asian Perspective." Chinese Journal of Comparative Law 8, no. 1 (May 21, 2020): 250–78. http://dx.doi.org/10.1093/cjcl/cxaa006.
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Abstract Since the Belt and Road Initiative (BRI) was announced in 2013, China’s expanding economic, geopolitical, and business presence demonstrates its eagerness to play a more significant role in the systems of international governance and law. The BRI’s scale and influence have captured immense attention among politicians, policymakers, experts, and academics. They offer numerous interpretations of the BRI’s global and regional impact. If China claims to be a stakeholder in the international system, what are the implications for the legal systems of the BRI countries and their governance systems? To what extent does the BRI lead to the expansion of China’s institutions and legal norms? How can the BRI countries ensure that their interests in BRI projects are adequately protected? This article analyses the Central Asian perspective on the BRI. Central Asia and Kazakhstan, in particular, have strategic relevance to the BRI. Remarkably, the BRI was launched during the visit of President Xi Jinping to Kazakhstan, which means that Kazakhstan plays a critical transit role as China’s pivot to Europe. Although the BRI is an ambitious global strategy, it has provoked much criticism, especially in liberal countries. Despite China’s efforts to promote the BRI as a win–win endeavour, China’s increased economic and political influence has already led to heightened scrutiny of its role in shaping ideology, economic development, and the legal and institutional landscapes. While many academic publications address different perspectives of the BRI, the context behind BRI projects requires further attention. This article contributes to the literature by studying BRI projects in Kazakhstan and their legal framework and governance.
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Zerilli, Filippo M. "The rule of soft law." Focaal 2010, no. 56 (March 1, 2010): 3–18. http://dx.doi.org/10.3167/fcl.2010.560101.
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This introductory article aims to clarify why soft law is an interesting field to explore from a legal anthropological perspective and to point out a number of issues this theme section suggests taking into consideration. The article provides the context for the theme section, inserting soft law within global legal concerns and processes. It outlines the emergence of the notion of soft law, and summarizes the controversies it has raised among legal scholars and law practitioners. Then it explains why, despite the elusive character of the notion and its uncertain normative status, as soon as we move beyond a number of emblematic concerns for law practitioners, soft law mechanisms and practices appear to be a vantage point to explore the emerging transnational legal order, and particularly the relations among state, supra-state, and non-state (private) forms of regulation. Finally, the article introduces the articles in the special section of this issue by highlighting the ways in which they empirically deal with soft law practices and global legal pluralism in a variety of social fields and contexts, using ethnographic sensitivity and imagination.
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Gahér, František, Marek Števček, and Martin Braxatoris. "Instruments and rules of production and interpretation of a concise text (with special regard to normativity)." Journal of Linguistics/Jazykovedný casopis 70, no. 1 (June 1, 2019): 73–94. http://dx.doi.org/10.2478/jazcas-2019-0041.
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Abstract In the production of concise texts, several instruments are used, of which two can be considered as basic: intratextual referencing (anaphora/cataphora) and the simple or complex ellipsis (ellipsis/syllepsis). However, the use of these instruments affects the unambiguity and intelligibility of the text. Certain rules for and limits to the simplification and shortening of the primary text are needed to secure the possibility of an unambiguous reconstruction of the text by the language user. However, we show that the elimination of homonymy from these texts seems to require considerable skill in the given area. Some such texts may be unintelligible even to informed experts. We delineate some basic cases of application of instruments for the streamlining of texts, with paradigmatic examples from law, including its Anglophone variants. Partly due to the nature of modern English as used in law, Anglo-American linguistics was compelled to formulate, in cooperation with legal theorists, explicit rules for the production and reconstruction of concise texts. By contrast, neither Slovak, nor Czech linguistics offers a self-contained set of such explicit rules. Using examples from law, we therefore propose explicit formulations of several rules which are used implicitly. They are the rule of the last antecedent, the rule of serial antecedents, the rule of the nearest reasonable referent, the rule of the series qualifier, the rule of unchanged topic, the rule of focus development, and the rule of repetition dominance. We argue that in the reconstruction of certain concise legal texts, the syntactic and semantic rules provided by linguistics or logic do not suffice. Therefore, it is necessary to complement them with specific methods of interpretation of legal texts.
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Schauer, Frederick. "In Defense of Rule-Based Evidence Law–and Epistemology Too." Episteme 5, no. 3 (October 2008): 295–305. http://dx.doi.org/10.3366/e1742360008000403.
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ABSTRACTEver since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.
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김성배. "Legal systems and Practices for Controlling None-binding Rule and Guidance Documents in US." KOOKMIN LAW REVIEW 28, no. 3 (February 2016): 503–42. http://dx.doi.org/10.17251/legal.2016.28.3.503.
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Soleh, Mukhammad. "FACTORS CAUSING LEGAL INEFECTIVE RULE MAKING PROCEDURES." International Journal of Advanced Research 8, no. 02 (February 29, 2020): 298–311. http://dx.doi.org/10.21474/ijar01/10466.
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Mankovskaya, V. I., and I. Yu Mankovsky. "Legal Regulation of Municipal Rule-Making Process." Izvestiya of Altai State University, no. 6 (2018): 108–12. http://dx.doi.org/10.14258/izvasu(2018)6-20.
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Mirzayev, Shuhrat Shavkatovich. "LEGAL REGULATION IN THE RULE ACTIONS SYSTEM." Theoretical & Applied Science 31, no. 11 (November 30, 2015): 144–46. http://dx.doi.org/10.15863/tas.2015.11.31.23.
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Hausman, Ken. "HIPAA Privacy Rule Legal, Federal Court Says." Psychiatric News 39, no. 10 (May 21, 2004): 4. http://dx.doi.org/10.1176/pn.39.10.0004.
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van Caenegem, R. C. "Chance and Legal History." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 75, no. 2 (2007): 179–88. http://dx.doi.org/10.1163/157181907781352564.
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AbstractThe author presents four cases, where he analyses the role of chance. (1) An accident of chronology caused a dynamic king, interested in legal matters, to rule in England in the second half of the twelfth century. Consequently a modernized English common law was established before the neo-Roman law of the Schools and the officialities could intervene. (2) Finding the complete Corpus iuris civilis in northern Italy in the second half of the eleventh century, was the result of a chance discovery and not due to a search party sent to Greece in order to obtain a copy of Justinian's lawbook. (3) The 'reception' of Roman law in late fifteenth-century Germany was caused, inter alia, by the circumstance that Emperor Maximilian happened to be surrounded by an 'Academy' of humanists and to have Roman-imperial ambitions. (4) The formation of the Seventeen Provinces of Emperor Charles V was the result of a conscious Burgundian and Habsburg policy. But their sixteenth-century separation into present-day Belgium and Holland was the result of their Spanish ruler, King Philip II. He himself had come to rule over the Low Countries because of a fortuitous series of infant deaths in the Spanish dynasty in 1497–1499, which led to the accession of a Habsburg prince to the Spanish throne and eventually to a Spanish king ruling over the Low countries.
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Subkhonov, Sherali Mukhammad Ugli. "Rule Of Law Is Becoming A Value." American Journal of Political Science Law and Criminology 03, no. 02 (February 28, 2021): 115–22. http://dx.doi.org/10.37547/tajpslc/volume03issue02-17.
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In the article, the rule of law is positioned as a universal principle of ensuring human rights, the main value of modern society. The history of formation, legal nature, the content of the rule of law as a principle, a legal phenomenon and a conceptual approach to modern human rights have been studied. Besides, the foreign experience of the implementation of the rule of law has been analyzed in the CIS countries, the European Council, the United States and researched mechanisms for ensuring the rule of law. The principle of the rule of law is presented as the only effective means of ensuring the inviolability of democracy, as well as one of its main features, and its provision and control is a guarantee of ensuring human rights to the extent that decent living conditions are created for every person.
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Dyzenhaus, David. "Rand’s Legal Republicanism." McGill Law Journal 55, no. 3 (February 10, 2011): 491–510. http://dx.doi.org/10.7202/1000621ar.
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Justice Rand’s judgment in Roncarelli v. Duplessis is best understood in light of recent political and legal theory that argues for the importance of the republican ideal of non-domination for in it he sets out an account of the rule of law that gives clear expression to that ideal, one founded in a more basic ideal of respect for persons. As Rand understood things, Roncarelli was a member of a disliked minority, who was singled out for persecution when he had done nothing more than exercise his rights as a free and equal subject of the law. Those who singled him out for persecution sought to achieve their ends through law. The author argues that since government under law is valuable because it helps to secure non-domination (the rule of law rather than the arbitrary rule of men), to use law to single out an individual for domination is, as Duplessis discovered, rather a complex business. No matter one’s grip on power, one might find that one’s ends simply do not count as public ends within a system of public law because such a system is predicated on respect for the persons who are subject to its authority.
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Chiao, Vincent. "HYPERLEXIS AND THE RULE OF LAW." Legal Theory 27, no. 2 (June 2021): 126–48. http://dx.doi.org/10.1017/s1352325221000094.
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AbstractOn a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.
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민윤영. "Christian Social Participation as Civil Movement in Democratic State Governed by the Rule of Law." KOOKMIN LAW REVIEW 24, no. 2 (October 2011): 79–114. http://dx.doi.org/10.17251/legal.2011.24.2.79.
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Whiting, Susan H. "Authoritarian “Rule of Law” and Regime Legitimacy." Comparative Political Studies 50, no. 14 (January 23, 2017): 1907–40. http://dx.doi.org/10.1177/0010414016688008.
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A prominent hypothesis to explain the durability of authoritarian regimes focuses on the official adoption of law and legal institutions. The present study offers a novel empirical approach to test the relationship between legal construction and regime legitimation, drawing on a quasi-experiment and original panel survey in rural China. Using difference-in-difference, subgroup, and two-stage least squares analyses, it finds that the Chinese state’s project of legal construction powerfully shapes the legal consciousness of ordinary rural citizens and that state-constructed legal consciousness enhances regime legitimacy. The study also presents qualitative evidence to identify the causal mechanism linking state-constructed legal consciousness and regime legitimacy: the expansion of local institutions like state-run legal-aid centers in rural communities. The study contributes to the institutional focus in debates about authoritarian durability by providing evidence at the intersection of state and society.
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Smith, Stephen W. "Some Realism about End of Life: The Current Prohibition and the Euthanasia Underground." American Journal of Law & Medicine 33, no. 1 (March 2007): 55–95. http://dx.doi.org/10.1177/009885880703300102.
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It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.–Oliver Wendell HolmesThis well-known quotation from one of America's foremost judges provides an important admonishment about the role of history within the law. Holmes’ admonishment is that, even in common law systems, we should not allow ourselves to become too dependent on legal rules laid down in the past. Legal rules laid down long ago are as likely as newly constructed ones to have flaws in their reasoning or be difficult to implement in real-life situations. Furthermore, even in cases where the rule may have originally served some purpose, it may nevertheless be out of date and therefore have little continuing benefit to a particular legal system.
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Ershov, V. V. "Russian Regulatory Legal Acts and Regulatory Legal Agreements." Rossijskoe pravosudie 4 (March 24, 2020): 16–27. http://dx.doi.org/10.37399/issn2072-909x.2020.4.16-27.
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The article analyzes theoretical and practical problems of Russian normative legal acts and normative legal agreements, including differentiation of concepts «sources of law» and «forms of law»; problems of advanced lawmaking, «rule of law», principles of law, correlation between principles of law and norms of law, adoption of the Code «Sources and forms of law in Russia».
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Tirskikh, M. G. "Protrusion of law as a legal phenomenon: comparative legal aspects." Siberian Law Herald 4, no. 91 (2020): 19–24. http://dx.doi.org/10.26516/2071-8136.2020.4.19.
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Violation of the universal requirement of harmony in law causes negative legal consequences. In the end, this leads to the emergence of obstacles in legal regulation, violations of law and order. Long-term violation of harmony in law, caused by stable factors, leads to the emergence of “protrusion of law.” “Protrusion of law” is a complex phenomenon that exists in the legal system of a particular state, associated with the negative influence of long-standing factors of disharmony, manifested in the existence of a set of legal norms (established models of law enforcement and positions of interpretation of law), which for one reason or another is not coherent to the general one, established, legal order, which causes a set of negative consequences in the end, leading to a complex violation of legal regulation. Protrusion has three main forms: normative protrusion (based on a violation of the coherence of a rule of law to other legal norms), law enforcement (sacred with the contradiction of the content of a legal norm and a law enforcement position developed in the course of applying such a norm) and hermeneutic protrusion (associated withare typical, as a rule, for special situations and legal regimes. They are manifested to the greatest extent in conditions of special administrative regimes of emergency and martial law, legal regimes of functioning of certain political regimes (in particular, an autocratic regime). Protrusions are manifested in different ways in legal systems belonging to different legal families. So, in the conditions of the Romano-Germanic legal family, the protrusion of law, as a rule, manifests itself in the normative sphere and is associated with the emergence of legal norms that are not coherent with other norms. The main form of overcoming protrusion is rule-making activity aimed at identifying and eliminating norms that lead to protrusion. In an Anglo-Saxon legal family, protrusion is less likely to occur. The presence of normative non-coherence does not lead directly to negative consequences, but is leveled by the action of the court, which, through case-law, can harmonize this norm in the context of the general legal order. At the same time, protrusions can occur in the very law enforcement practice, causing the destruction of the previously achieved harmony. In the context of other legal systems, the emergence of protrusion, as a rule, is caused by the identification of legal regulations that contradict the basic principle of the formation of such legal systems (religious, doctrinal, traditional).
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A. A., Shelykh. "Rule of law, legal awareness and human rights." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 358–62. http://dx.doi.org/10.33663/2524-017x-2020-11-61.
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Shelykh A. A. Rule of law, legal awareness and human rights As the title implies the article describes such categories as legal consciousness, constitutional state and providing of human rights and freedoms. These categories are very important for Ukraine, which stays on the way of forming of constitutional state. In the article peculiarities of constitutional state and legal consciousness were described. Also psychic nature of legal consciousness was disclosed based on works of I. Kant and L. Petrozhitsky and own definition of legal consciousness was given. Main ways of providing of human rights were considered. The main purpose of this publication is to explore the role of legal consciousness in providing of human rights and freedoms. It should be stressed that legal consciousness is multidimensional phenomenon, because it has very complicated psychic nature and despite on a big variety of works on such topic it needs detailed research. In this research was found that legal consciousness plays fundamental role in providing human rights and freedoms. First of all, it produces different mechanisms of providing human rights. Everything starts in our mind especially our legal or illegal acts. Legal consciousness is one of the elements of the mind, which is an engine to all changes in society so logically follows that legal consciousness is an engine to all changes which has legal nature. In the article was suggested as a key to forming a constitutional state a legal consciousness, particularly high level of it both in public and officials. In the publication as an argument suggested that if both public and officials have high level of legal consciousness , authorities will make effective and necessary laws and people will perform them at own discretion, because they will understand it's necessarity In this publication empirical method especially method of observation was used. Thanks to this method it was found very low level of public legal consciousness both among the population and the authorities. Also comparative method was used. In the publication legal consciousness was compared with filter that leaks legal information and forms positive or negative attitude to the law as phenomenon. Method of analysis was used in particular was analyzed psychic nature of legal consciousness. And formally logical method was used during the analysis of works of I. Kant and L. Petrozhitsky. In conclusion it should be emphasized that to provide rights, freedoms and legitimate interests of human and citizens necessary to raise the level of public legal consciousness. It can be done thanks to special programs of legal education both for the population and the authorities. Keywords: law, legal consciousness, constitutional state, human rights, freedoms, legitimate interests.
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McIntyre, Juliette. "Rules are Rules: Reconceiving Monetary Gold as a Rule of Procedure." AJIL Unbound 115 (2021): 144–48. http://dx.doi.org/10.1017/aju.2021.15.
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The Case of the Monetary Gold Removed from Rome in 1943 is familiar to all international lawyers. Like a catechism, we are taught that the ICJ will not proceed with a case where the legal interests of a State not before the Court “would not only be affected by a decision, but would form the very subject-matter of the decision.” Mollengarden and Zamir's proposal that the Court should dispense with the Monetary Gold principle feels almost heretical. The authors contend that the ICJ Statute sets out a framework for balancing the interests of third parties through the use of the intervention procedure, and that Monetary Gold “disrupts that balance.” Monetary Gold is, they submit, to be treated as only a judicial decision, entitled under Article 36(1)(d) of the Statute to little deference as a source of legal principle. I suggest taking an altogether different approach. The best way to understand the place of the Monetary Gold principle is in the context of the ICJ's rule making powers pursuant to Article 30(1) of the Court's Statute. These rule making powers are not limited to the promulgation of formal Rules of Court but extend to the determination of appropriate procedures during the hearing of a case. These procedural rules (small r), articulated in the context of particular cases, may in time evolve into formal Rules of Court through an iterative process. Monetary Gold is an instance of the Court defining a small r procedural rule in a manner that is consistent with the Court's Statute.
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Sanusi, Sanusi, Soesi Idayanti, and Tiyas Vika Widyastuti. "Demokratisasi dalam Rangka Pembangunan Hukum Responsif." Diktum: Jurnal Ilmu Hukum 8, no. 2 (November 30, 2020): 182–91. http://dx.doi.org/10.24905/diktum.v8i2.84.
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This research is conceptual research that intends to examine the idea of democracy in progressive legal development. As a means of state policy, the development of laws carries a variety of implications. During that time the law was only understood as a rigid rule and put too much emphasis on aspects of the legal system regardless of the relationship between the law and the issues that had to be addressed, such as social issues. The law is synonymous with the order as a mirror of the regulation of the ruler, on the other hand, there is also an understanding of the law that emphasizes more on the legitimacy aspect of the rule itself. Responsive law is results-oriented, i.e. on goals that will be achieved outside the law. A hallmark of responsive law is the search for implied values contained in rules and policies. In this responsive legal model, they express disapproval of what they consider to be standardized and inflexible interpretations. Legal products that are responsive to the manufacturing process is democratic, namely participation, which invites the participation of as many elements of society as possible, both in terms of individuals, and community groups, and must also aspire to come from the wishes or desires of the community. This means that the product of the law is not the authority of the ruler to simply legitimize his power.