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Статті в журналах з теми "Between positive law and customary law":
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Stanimirović, Vojislav, and Una Divac. "Customary and positive law in Serbia." Arhiv za pravne i drustvene nauke 118, no. 4 (2023): 27–64. http://dx.doi.org/10.5937/adpn2304027s.
Анотація:
In order to fully and properly understand the essence of customary law, a joint explanatory endeavor of legal, ethnological, and sociological science is needed. During the last two centuries, the relationship between customary and positive law passed through two phases. The first phase was marked by the incredible strength and resistance of the customary law, which was deeply rooted in the patriarchal Serbian society. Its strength was such, that it managed to overpower the modern Austrian law during the creation of the Serbian Civil law code, despite the efforts and desires of the law code creator, Jovan Hadžić, to suppress it. Customary law became the sole regulator of marriage, family, and inheritance law, thus becoming a part of the positive law. The second phase took place after the Second World War. By promoting a new system of acceptable social and moral values, the new, revolutionary, socialistic law fiercely fought the customary law and rural traditions, labeling them as obsolete relicts of a class-divided society. However, customs showed their remarkable resilience, and found a way to survive this strife - quite ironically - by using the existing laws and legal loopholes, masking themselves sometimes like a chameleon. Maybe the best illustration of this conflict between positive and customary law can be found in the inheritance law, as it is a complex branch of law, which was shaped not only by laws, but also by the centuries-old traditions of our people. To be able to fully understand the customary inheritance law, one must first analyse the institutes of family, marriage, and kinship. Although many customs have already disappeared in the XXI century by overcoming the patriarchal notions in the modern society, some customs remained, but also some new have, due to various reasons, managed to emerge, making the topic of this paper quite contemporary
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Zejnullahu, MSc Njomëza. "Judicial Institutions in Albanian Customary Law and in Comparison with Modern Law (The Canon of Lekë Dukagjini)." ILIRIA International Review 5, no. 2 (December 31, 2015): 151. http://dx.doi.org/10.21113/iir.v5i2.86.
Анотація:
This article compares judicial institutions of customary law and modern law. There are many discussions between authors regarding the relation between customary and modern law, specifically the impact of customary law in modern law. The role of the customary law is of crucial importance especially its impact in the positive law of the country. Although, the customary law was practiced years ago, similarities with current positive law are obvious. Many of the judicial institutions in Albanian customary law can be compared with similar ones in modern law, but is also crucial to identify differences between them. Main judicial institutions that served as enforcement mechanisms in Albanian customary law are identified in this article in comparison with respective institutions of modern law. In addition, it is important to view and analyse customary law in regard to its power as governing law in a given period. In this regard, an analysis of the Albanian customary law in view of Hart’s rule of recognition is provided.
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Aminov, A. R. "LAW AND CUSTOMARY LAW OF APPANAGE PEASANTS IN THE RUSSIAN EMPIRE." Vestnik Povolzhskogo instituta upravleniya 22, no. 4 (2022): 105–16. http://dx.doi.org/10.22394/1682-2358-2022-4-105-116.
Анотація:
Evolution of relations between law and customary law, which was in force in the communities of appanage peasants (until 1797 – palace peasants), in the period of the 18th – first half of the 19th centuries is studied. The author concludes that as a result of a targeted state policy in the Russian Empire the relative autonomy of the customary law of the appanage peasantry was eliminated, positive law replaced the public (self-administrative) part of customary law, only ordinary civil law relations within the community remained outside the field of direct regulation by law.
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Idrah, M. Chairul, Nuraini Nuraini, and Siti Nur Ambarini. "HUBUNGAN HUKUM PIDANA ADAT DAN FILSAFAT HUKUM." Legalitas: Jurnal Hukum 13, no. 2 (December 31, 2021): 218. http://dx.doi.org/10.33087/legalitas.v13i2.292.
Анотація:
The purpose of writing this scientific paper is to explain and analyze the relationship between customary criminal law and legal philosophy with normative juridical methods. The existence of additional criminal provisions in the Draft Criminal Code Draft in the form of customary criminal law, the study sees from the philosophy of law in the form of an in-depth and speculative study that customary criminal law which is juridically not recognized as positive law because it does not meet the four requirements for recognizing customary law from an indigenous community unit as a positive law so that it is found that customary law in its field is broad.
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Pelu, Ibnu Elmi Acmad Slamat, Ahmad Dakhoir, Go Lisanawati, and Jefry Tarantang. "The Combination of Legal System: Reconciliation of Divorce Cases in Dayak Ngaju Customary Law and Positive Law Systems." Jurnal Akta 9, no. 1 (March 4, 2022): 1. http://dx.doi.org/10.30659/akta.v9i1.20427.
Анотація:
This study aim to observe a legal rationale regarding a legal-system implementation of Dayak Ngaju customary dispute reconciliation in Kuala Kurun, Gunung Mas Regency, Central Kalimantan Province. In practice, the researchers found a combination performed autonomously in the legal system. Such combination was a society’s belief in using both customary legal system and positive legal system. The idea of this combination was underlined by a reflection of legal rationale finding two legal systems (customary and positive) functioned respectively where suitability occurred between legal culture of living law and formal law. The principle of a combination of legal system was an evidence of a new insight or a new paradigm through factual and norm elaborations from Dayak Ngaju customary divorce reconciliation case. This study used descriptive and analytical qualitative research method on the phenomenon of Dayak Ngaju customary dispute reconciliation in Central Kalimantan. The result obtained was implementation of a legal combination (both customary and national), instead of only an effort of a harmonization. However, the result show that implementation was not practically able to replace a naturalist paradigm, yet both were believed by the society to be able to achieve philosophical goal of a law, a peace.
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Arahim, Arahim, Auliah Andika Rukman, and Mahendratul Ihwan. "The Impact of Positive Law on Customary Law in Bialo Village, Gantarang District, Bulukumba Regency." JED (Jurnal Etika Demokrasi) 6, no. 1 (January 29, 2021): 116–23. http://dx.doi.org/10.26618/jed.v6i1.4687.
Анотація:
Abstract. The main problem in this research is that the researcher wants to reveal the impact of positive law on customary law in Bialo Village, Gantarang District, Bulukumba Regency. This type of research is qualitative research which aims to determine the impact of positive law on customary law in Bialo Village, Gantarang District, Bulukumba Regency. The sampling technique was purposive sampling. The data collection techniques used were interviews and documentation. The results of this study indicate that the norms of customary law in the village of Bialo are still valid, including mappatabe, tudang sipulung, marriage, the relationship between humans and God, humans and nature, and humans and humans, boundaries of youth interactions, and customary sanctions. This situation is when we understand in detail. Basically, positive law is a law that binds in general or binds society as a whole. So that the implementation should not conflict with the norms that live in society. Norms that live in society in general can be concluded as a law that lives in the community or customary law so that researchers can conclude that positive law has good and bad impacts on customary law in Bialo Village, Gantarang District, Bulukumba Regency.Keywords: Impact, Positive Law and Customary LawAbstrak. Masalah utama dalam penelitian ini adalah peneliti ingin mengungkap dampak hukum Positif terhadap hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba. Jenis penelitian ini adalah penelitian kualitatif yang bertujuan untuk mengetahui Dampak hukum positif terhadap hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba. Teknik pengambilan sampel yaitu Purposive Sampling. Teknik pengumpulan data yang digunakan adalah wawancara dan dokumentasi. Hasil penelitian ini menunjukkan bahwa Norma-norma hukum adat di desa Bialo masih berlaku di antaranya yaitu mappatabe, tudang sipulung, pernikahan, hubungan antara manusia dengan tuhan, manusia dengan alam, dan manusia dengan manusia, batasan pergaulan muda-mudi, dan sanksi adat. Keadaan tersebut bila kita memahami secara rinci Pada dasarnya hukum positif adalah hukum yang mengikat secara umum atau mengikat masyarakat pada keseluruhannya. Sehingga dalam pelaksanaan tidak boleh bertentangan dengan norma – norma yang hidup dalam masyarakat. Norma – norma yang hidup dalam masyarakat secara umum dapat disimpulkan sebagai suatu hukum yang hidup dalam masyarakat atau hukum adat sehingga peneliti dapat mengambil kesimpulan bahwa hukum positif memberikan dampak yang baik dan buruk bagi hukum adat di Desa Bialo Kecamatan Gantarang Kabupaten Bulukumba.Kata Kunci: Dampak, Hukum Positif dan Hukum Adat
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Iriansyah, Iriansyah, Irfansyah Irfansyah, and Rezmia Febrina. "CORRELATION BETWEEN TRADITIONAL LAW AND POSITIVISM IN INDONESIA AND MALAYSIA." Pena Justisia: Media Komunikasi dan Kajian Hukum 23, no. 1 (March 21, 2024): 970. http://dx.doi.org/10.31941/pj.v23i1.1908.
Анотація:
<p align="justify"><em>This article aims to analyze the correlation between customary law and positivism law in Indonesia and Malaysia. This research uses a normative juridical approach with a statute approach and a conceptual approach. Based on the research results, customary law is unwritten with positivism law which is written. And positive law in Indonesia or the law that is expected to be present in the future in Indonesia, must be seen from the aspect of culture or customary law that grows and develops in the environment of indigenous peoples. Given the purpose of the form of a regulation or law is to meet human needs in social life. So the people who enjoy the law are the people. Whereas in Malaysia customary law is still recognized as long as it grows and develops in the community and does not conflict with the religion of Islam and has been promulgated, it can be said that there is the same thing as the distribution of assets gono gini or joint assets with Spencerian assets in Malaysia. </em><em></em></p>
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Rizka Fakhrurozi and Erwin Syahrudin. "HUKUM ADAT DALAM PERKEMBANGAN: PARADIGMA SENTRALISME HUKUM DAN PARADIGMA PLURALISME HUKUM." Juris 6, no. 2 (December 13, 2022): 472–84. http://dx.doi.org/10.56301/juris.v6i2.620.
Анотація:
The paradigm of understanding customary law and its development must be placed in a large space, by examining extensively: a) Studies that no longer look at the legal system of a country in the form of state law, but also customary law, religious law and customary law; b) Understanding of law (adat) not only understands customary law in traditional communities- rural communities, but also the laws that apply in certain environmental communities (hybrid law or unnamed law); c) Understanding the phenomenon of trans-national law as the law made by multilateral organizations, then there is an interdependence relationship between international law, national law and local law. With a holistic and integrative understanding, the development and position of customary law will be adequately understood. Positively means that customary law is seen as law that comes from the thoughts and ideals of the people. Negatively, customary law is seen from the outside, from its relationship with other laws, both strengthening and weakening and the interaction of state political developments. Positive legal developments mean that customary law will be recognized in society in doctrine, legislation, in jurisprudence and in everyday life. On the other hand, the negative development is how customary law is sidelined and displaced or completely invalidated by their existence positive law represented by the State both in legislation and in court decisions.
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Bramantyo, Rizki Yudha, and Irham Rahman. "application of child adoption (balaku anak) and its legal effects on customary law system of the Dayak Ngaju tribe." International research journal of management, IT and social sciences 8, no. 1 (December 2, 2020): 1–8. http://dx.doi.org/10.21744/irjmis.v8n1.1041.
Анотація:
The purpose of this research is to find out how the application of children's behavior and its influence on the customary law system of the Dayak Ngaju Tribe. The research method used is qualitative. Primary data comes from observations and interviews. Meanwhile, secondary data from previous studies were collected to support the findings. The findings reveal that there are differences in the rule of law between Islamic law and positive law and customary law of the Dayak Ngaju tribe. Islamic law regulates inheritance and inheritance rights according to lineage, positive law regulates the return of cases of adoption to civil law, and customary Dayak Ngaju law recognizes adoption.
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Tohari, Ilham, Siti Rohmah, and Ahmad Qiram As-Suvi. "Exploring Customary Law: Perspectives of Hazairin and Cornelis Van Vollenhoven and its Relevance to the Future of Islamic Law in Indonesia." Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 7, no. 1 (October 30, 2023): 50. http://dx.doi.org/10.30659/jua.v7i1.32600.
Анотація:
The difference between Islamic law and Western law in viewing customary law is the core problem that forms the background of this research. This article aims to explore in-depth Customary Law from the perspectives of Hazairin and Cornelis Van Vollenhoven and its relevance to the future existence of Islamic law in Indonesia. This research is a literature study applying a qualitative Juridical-Normative approach. The primary sources for this research are the original works of Hazairin (Tujuh Serangkai tentang Hukum dan Hazairin, Hukum Kewarisan Bilateral Menurut al-Qur�an dan Hadith) and Van Vollenhoven (Het Adatrecht Van Nederlandsch-Indie and its translated version, Van Vollenhoven on Indonesian Adat Law). The secondary sources are all references relevant to the topic of the article. Comparative analysis is used in analyzing the data. The research findings explain that, according to Hazairin, customary law can be applied anywhere as long as it does not contradict Islamic law. In contrast, Van Vollenhoven argues that customary law does not need to consider religion because all humans have equal rights before God, thus rejecting or eliminating customs or traditions is considered undignified. The formation of national law due to culture and tradition is an important part of society. This research provides a conceptual historical-theoretical narrative related to customary law in Indonesia. Despite having different perspectives on customary law, both Hazairin and Van Vollenhoven share the vision that customary law should be made into positive law. Therefore, the existence of customary law needs to be considered by lawmakers to become national positive law.
Дисертації з теми "Between positive law and customary law":
1
Omoali, Quionie. "Vers un modèle évolué de prise en charge des victimes des violences sexuelles basées sur le genre commises en période de conflits armés. Cas de la République Démocratique du Congo." Electronic Thesis or Diss., Pau, 2024. http://www.theses.fr/2024PAUU2156.
Анотація:
Depuis environ vingt-sept ans, la République Démocratique du Congo (RDC) est en proie aux conflits armés qui se poursuivent actuellement dans l'Est de ce pays. On y compte plusieurs milliers de morts et de femmes et filles violées. Ces dernières ont subi des préjudices divers et exceptionnels causés par les actes de violences sexuelles, amplifiés par la stigmatisation et l'ostracisation sociale.Nonobstant l'existence d'un cadre juridique national et international progressiste, l'impunité persiste. Les victimes n'ont toujours pas accès au droit à réparation. Le système judiciaire national dysfonctionnel, conforté par les principes du droit pénal et du droit à réparation classiques en vigueur, se révèle la faiblesse de la réponse nationale aux crimes internationaux en cause.Dans le cadre de la relance de la justice transitionnelle, les réponses nationales de justice pénale et de réparation s'inscrivant dans l'approche classique apparaissent inadaptées au contexte national et international.Au travers d'une approche globale sui generis de prise en charge des crimes internationaux centrée sur l'affirmation de l'autonomie des violences sexuelles utilisées comme arme de guerre en RDC, émerge un mécanisme de justice transitionnelle à visée judiciaire et extrajudiciaire.Dans un contexte géopolitique contrasté par le désengagement des Nations Unies ou de l'effritement de la responsabilité internationale, la perspective d'un modèle de mécanisme judiciaire construit selon l'approche crescendo d'internationalisation ou de dénationalisation de la compétence concurrente entre les juridictions nationales (les Chambres Judiciaires Spécialisées) et le Tribunal Pénal Spécial pour la RDC, juridiction internationale, constitue l'innovation de la présente thèseFor approximately 27 years, the Democratic Republic of the Congo has been plagued by armed conflicts, currently persisting in the eastern part of the country. Thousands have lost their lives, and women and girls have endured various and exceptional harms from sexual violence, compounded by stigma and social ostracization. Despite progressive national and international legal frameworks, impunity persists, denying victims access to the right to redress. The dysfunctional national judicial system, guided by conventional criminal and reparative principles, reveals the weakness of the domestic response to the implicated international crimes. In the context of transitional justice revival, traditional national approaches to criminal justice and reparations prove inadequate in the dual national and international setting. A unique comprehensive approach addressing international crimes, focusing on the autonomy of sexual violence as a weapon of war in the DRC, gives rise to a transitional justice mechanism encompassing both judicial and extrajudicial aspects. In a geopolitical landscape marked by UN disengagement and the erosion of international responsibility, the prospect of a judicial mechanism constructed with a crescendo approach to the internationalization or denationalization of concurrent jurisdiction between national courts (Judicial Special Chambers) and the Special Criminal Court for the DRC, an international tribunal, constitutes the innovation of this thesis
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Weeks, Sindiso Mnisi. "The interface between living customary law(s) of succession and South African state law." Thesis, University of Oxford, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669981.
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Balderrama, Moises Miguel Machicado. "The interaction between formal and customary law in the allocation of assets among poor livestock keepers in Bolivia." Thesis, University of Reading, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.515800.
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Manson, Katherine Elizabeth. "Comparing and contrasting liberal, communitarian and feminist approaches to resolving tensions between customary and constitutional law: the case of polygamy in Swaziland." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003011.
Анотація:
Tensions between the individual rights and freedoms found in constitutional bills of rights and the traditionally prescribed social roles and positions articulated in African customary law systems have often been characterised as tensions between communitarian and liberal philosophies. In particular, the notion of gender equality, which is often a feature of the protections offered by constitutional bills of rights, is seen to be in direct opposition to the overtly patriarchal character of many African customs and traditions. This thesis looks specifically at polygamy, long and widely considered in the West to be an oppressive practice premised on the assumed inferiority of women. The analysis considers the implications of polygamy in a particular cultural context, that of the Kingdom of Swaziland, where the newly instituted constitution is often seen to be incompatible with many aspects of Swazi customary law. Here, the tension between the constitutional commitment to gender equality and the persistence of polygamy as a seemingly discriminatory cultural practice forms a lens through which to view the debate as a whole. The theoretical analysis is supplemented by empirical research sourced from local media archives and in-depth interviews conducted with twelve Swazi women, both unmarried and married in polygamous relationships. Communitarian and liberal approaches to resolving this tension are compared, contrasted and finally critiqued from a feminist standpoint. The feminist critique of both communitarianism and liberalism implies that neither ideology promises much for women and affirms the relatively recent feminist suggestion that the key to resolving tensions between constitutional and customary law in general, and to uplifting the social/legal status of women in particular lies in the enhancement of women’s democratic participation and the improvement of women’s decision-making powers.
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Althabity, Mohammad M. "Enforceability of arbitral awards containing interest : a comparative study between Sharia law and positive laws." Thesis, University of Stirling, 2016. http://hdl.handle.net/1893/23090.
Анотація:
The dynamics of our globalised world open the way for international trade and transactions between different countries; this may lead to conflicts in laws where transactions and trade may be subject to different legal systems. One of the biggest issues in international commercial law is disputes over the charging of interest, for example with regard to late payment, interest-based loans, or compensation for damages. Interest disputes are considered to be a complex area of law and even more complex in the international field. At the international level, interest claims may be connected to many areas of commerce and thus governed by various laws, which are different from one country to another; moreover, each country has its own interest rate and such rates are changeable according to the nature of law and economics under some jurisdictions. Furthermore, the concept of interest itself is affected by influences such as religious beliefs and economic, political and cultural trends. Interest can be treated as a substantive or a procedural matter. The settlement of these disputes therefore faces difficulties. Arbitration, as a method for settlement of disputes, is characterised by special features that assist in resolving these issues; but it faces some obstructions, especially in international commercial arbitration. The practices of arbitral tribunals and national courts in this regard are different. The results of different interpretations, approaches, and theories with regard to arbitration, at the pre-arbitration, during arbitration and post-arbitration stages, may also differ widely due to the diversity of financial and legal systems such as Common Law, Civil Law and the Islamic legal system – Sharia Law – across different countries. Each legal system has a different methodology and theories, even within an individual country under one legal system, and a state within a federal system has its own laws, which may have different interpretations in this respect. The New York Convention of 1958 on enforcing foreign arbitral awards was established in favour of arbitral awards and for the purpose of unifying international rules of arbitration. This Convention provides some procedural and substantive rules for the enforcement of foreign arbitral awards, but also provides some grounds for refusal. These rules have been affected by different interpretations under different jurisdictions and legal systems, which lead to different perspectives on the matter of charging interest and settlement by arbitration. The outcome of applying the NYC under these interpretations often has the opposite of its intended effect: the rejection of foreign arbitral awards. Due to such ambiguities, courts occasionally intervene in arbitration in all its stages. The interventions of national courts occur in three stages: enforcement of the arbitration agreement, enforcement of the contract under the applicable law to the agreement, and enforcement of the foreign arbitral award. The confusion between substantive and procedural laws also creates confusion with respect to public policy, non-arbitrability and enforceability. In addition, there may be a lack of clarity on the scope of arbitration with respect to the parties’ agreement, whether or not the parties have agreed to the interest rates and periods and whether or not they have agreed to the authority of the arbitrator. These issues affect the enforceability of an arbitration agreement, the law applicable to the disputed contract, the freedom of parties, the authority of the arbitrators and the enforceability of the awarded interest. The thesis studies how arbitral awards containing interest have been interpreted across the three aforementioned legal systems under the NYC 1958 in Saudi Arabia, Egypt, the UAE, England, France, and the US and the enforceability of such awards.
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Mutema, Angela N. "The interface between customary laws of succession in the traditional justice system and the formal justice system in." UWC, 2020. http://hdl.handle.net/11394/7367.
Анотація:
Doctor Legum - LLDTraditional justice systems (TJS), which apply African customary law (ACL), play a significant role in the regulation of various cultural, social, and economic spheres of individual lives in society. It is estimated that 90% of African countries use TJS in dispute resolution. Succession matters form one of the areas in which TJS are applied. In Kenya, it is estimated that the majority of succession matters are addressed through TJS given that only 36% of cases are taken to the formal justice system (FJS) for determination. This indicates the presence of legal pluralism where formal law co-exists with African customary law. However, the application of customary succession laws and their enforcement by the FJS encounter impediments which curtail the integration of ACL within the FJS. Therefore, the purpose of this study is to determine the interface between African customary laws of succession in the TJS and the FJS. In order to achieve this objective the study applies the Historical School of Jurisprudence as its theoretical framework and applies document analysis as the research methodology. The major findings of the study indicated that though progressive recognition, application and enforcement of ACL in Kenya has been realised, there are several impediments to the integration and enforcement of customary succession decisions within the FJS. These include non-complimentary legal provisions, lack of in-depth knowledge on ACL by the FJS, and more importantly, lack of a policy guideline on the integration of ACL within the FJS. Based on these findings, this study finds it necessary to develop a guideline that will enhance the integration and enforcement of customary succession decisions by the FJS.
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Ngameni, Herman Blaise. "La diffusion du droit international pénal dans les ordres juridiques africains." Thesis, Clermont-Ferrand 1, 2014. http://www.theses.fr/2014CLF10457.
Анотація:
Aujourd’hui, l’Afrique est sans aucun doute la partie du monde la plus affectée par la commission des crimes internationaux les plus graves. Pourtant, depuis des décennies, il existe des mécanismes juridiques visant à sanctionner les responsables des crimes qui heurtent la conscience humaine. Seulement, l’échec relatif de ces mécanismes peut pousser l’observateur à se demander s’il est possible de garantir la diffusion du droit international pénal sur le continent africain. Cette interrogation est loin d’être incongrue, car même si un nombre important d’états africains ont ratifié le Statut de Rome qui organise la répression du génocide, des crimes contre l’humanité, des crimes de guerre et même du crime d’agression, il n’en demeure pas moins que l’application de ce Statut dans les différents ordres juridiques concernés est très souvent compromise. La principale raison à cela c'est que, le droit international pénal ne tient pas forcément compte des particularismes juridiques des états qui ont pourtant la primauté de compétence, en vertu du principe de subsidiarité, pour sanctionner la commission des crimes internationaux selon les règles classiques de dévolution des compétences. De plus, il faut préciser que l’Afrique est le terrain de prédilection du pluralisme juridique qui favorise la juxtaposition de l’ordre juridique moderne et de l’ordre juridique traditionnel. Si le premier est en principe réceptif aux normes internationales pénales, le second qu’il soit musulman ou coutumier avec l’exemple des Gacaca rwandais, repose sur une philosophie juridique différente de celle du droit international pénal. Dans tous les cas, l’articulation du droit international pénal avec les ordres juridiques africains est une des conditions de sa diffusion. Cette articulation pourrait d’ailleurs être favorisée par le dialogue entre les juges nationaux et internationaux qui doivent travailler en bonne intelligence pour édifier un système international pénal ; d’où l’intérêt pour les états africains de favoriser une coopération effective avec les juridictions pénales internationales. Il va sans dire que, tout ceci ne sera possible qu’au sein des régimes politiques démocratiques capables de renoncer aux règles et pratiques juridiques anachroniques pour s’appuyer sur une politique criminelle pouvant favoriser, dans un avenir plus ou moins lointain, un véritable universalisme du droit international pénalToday, Africa is undoubtedly part of the world most affected by the commission of the most serious international crimes. Yet for decades, there are legal mechanisms to punish those responsible for crimes that shock the conscience of humanity. But the relative failure of these mechanisms can push the viewer to wonder if it is possible to ensure the dissemination of international criminal law on the African continent. This question is far from being incongruous, because even if a significant number of African states have ratified the Rome Statute that governs the fight against genocide, crimes against humanity, war crimes and the crime of aggression even, the fact remains that the application of the Statute in the different legal systems involved is often compromised. The main reason for this is that international criminal law does not necessarily take into account the legal peculiarities of the states that have yet the primacy of jurisdiction under the subsidiarity principle, to sanction the commission of international crimes by the conventional rules devolution of powers. In addition, it should be noted that Africa is the stomping ground of legal pluralism that promotes juxtaposition of the modern legal system and traditional law. If the first is normally receptive to criminal international standards, the second whether Muslim or customary with the example of the Rwandan Gacaca is based on a different legal philosophy from that of international criminal law. In all cases, the articulation of international criminal law with African legal systems is one of the conditions of release. This link could also be encouraged by the dialogue between national and international judges who must work in harmony to build an international criminal system; hence the need for African states to promote effective cooperation with international criminal courts. It goes without saying that all this will be possible only in democratic political systems which can waive the rules and legal practices anachronistic to press a criminal policy that can promote in a more or less distant future, a true universalism of international criminal law
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Grenfell, Laura. "The relationship between legal pluralism and the rule of law in South Africa and Timor-Leste." Phd thesis, 2009. http://hdl.handle.net/1885/7180.
Анотація:
The re/establishment of the ‘rule of law’ in transitional countries has become a mantra of the international community. At its core, the rule of law assumes that the state enjoys a monopoly of law. This thesis argues that the promotion of the rule of law in transitional countries gives insufficient attention to whether a strong level of legal pluralism exists, in that forms of non-state law, such as customary law, operate in parallel with state law and are preferred by a large proportion of the population. A strong level of legal pluralism is the norm in many regions of the world, particularly in Africa, Asia and the Pacific, where between 80 to 90 per cent of disputes are taken to non-state legal mechanisms for resolution.
This study examines two transitional countries, South Africa and Timor-Leste, which are attempting to re/establish the rule of law and where legal pluralism is strong. ...
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Manson, Katherine Elizabeth. "Comparing and contrasting liberal, communitarian and feminist approaches to resolving tensions between customary and constitutional law : the case of polygamy in Swaziland /." 2008. http://eprints.ru.ac.za/1659/.
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Visser, Jacobus Hendrik. "The relationship between the proposed International Criminal Law Section of the African Court and the International Criminal Court / Jacobus Hendrik Visser." Thesis, 2014. http://hdl.handle.net/10394/15799.
Анотація:
This dissertation presents an analytical literature study regarding the relationship between the International Criminal Court and the proposed International Criminal Law Section of the African Court. The realisation of the International Criminal Law Section of the African Court will place itself and the International Criminal Court within the same jurisdictional sphere with regard to the adjudication of international customary law crimes with respect to its African member states. It is noteworthy to point out that this complexity is fraught with political turmoil regarding Africa, the International Criminal Court and the United Nations Security Council. This complex issue has been acutely recognised by numerous academics and law experts. Neither the Rome Statute nor the Protocol makes any reference towards each other, leaving its respective African member states with the daunting and ambiguous task of navigating through this complexity in isolation. This dissertation aims to investigate, analyse and ultimately offer a plausible solution to this immediate concern. In order to accomplish the aforementioned, this study will firstly investigate and evaluate both constitutional treaties of both international courts, respectively. The issue pertaining to the endowment of immunity will also be separately evaluated, considering the conflicting approaches followed by both judicial institutions. Ultimately, all previous sections will be analysed in order to recommend amendments to the Protocol to align itself with international law and settled international practice. A complementarity scheme will be introduced on the basis of the progressive interpretation of positive complementarity to harmonise both courts within the same jurisdictional sphere. Lastly, this dissertation will be concluded by remarks recapitalising the main findings.LLM, North-West University, Potchefstroom Campus, 2015
Книги з теми "Between positive law and customary law":
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Randa, Hezron. Problems of interaction between English imposed system of law and Luo customary law in Kenya. [Lund, Sweden]: Royal University of Lund, Sweden, Dept. of Law, 1987.
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Okereafoezeke, Nonso. Law and justice in post-British Nigeria: Conflicts and interactions between native and foreign systems of social control in Igbo. Westport, Conn: Greenwood Press, 2002.
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Chenaux-Repond, Maia. Report on workshop: Contradictions between "customary law" and women's equality : women, what do you want? Harare]: Rudécon Zimbabwe, 1999.
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Karsten, Peter. Between law and custom: "high" and "low" legal cultures in the lands of the British diaspora : the United States, Canada, Australia, and New Zealand, 1600-1990. Cambridge: Cambridge University Press, 2001.
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Karsten, Peter. Between law and custom: "high" and "low" legal cultures in the lands of the British diaspora : the United States, Canada, Australia, and New Zealand, 1600-1990. Cambridge, UK: Cambridge University Press, 2002.
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Inc Checchi and Company Consulting. USAID Afghanistan rule of law project: Field study of informal and customary justice in Afghanistan and recommendations on improving access to justice and relations between formal courts and informal bodies. Kabul: Checchi and Company Consulting, Afghanistan rule of law project, 2005.
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Joffe, Lisa Fishbayn, and Sylvia Neil. Gender, religion, and family law: Theorizing conflicts between women's rights and cultural traditions. Waltham, Mass: Brandeis University Press, 2012.
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Scott, Craig. Cross-cultural conflicts: An anthology exploring the relationships between cultural difference, legal pluralism, and the conflict of laws. [Toronto]: Faculty of Law, University of Toronto, 1996.
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Scott, Craig. Cross-cultural conflicts: An anthology exploring the relationships between cultural difference, legal pluralism, and the conflict of laws. [Toronto]: Faculty of Law, University of Toronto, 1996.
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Forsyth, Miranda. Report on Vanuatu Judiciary Conference 2006: The relationship between the Kastom and state justice systems : conference held at USP, Emalus Campus Port Vila, 28-29 August 2006. Port Vila, Vanuatu: Vanuatu Judiciary Law Conference, 2006.
Частини книг з теми "Between positive law and customary law":
1
Vauthier Borges de Macedo, Paulo Emílio. "The Law of Nations: Between Natural and Positive Law." In Studies in the History of Law and Justice, 13–63. Cham: Springer International Publishing, 2017. http://dx.doi.org/10.1007/978-3-319-59403-3_2.
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Brand, Paul. "Learning English Customary Law: Education in the London Law School, 1250-1500." In Vocabulary of Teaching and Research Between Middle Ages and Renaissance, 199–213. Turnhout: Brepols Publishers, 1995. http://dx.doi.org/10.1484/m.civi-eb.4.00128.
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da Cunha, Manuela Carneiro. "Silences of the law: Customary law and positive law on the manumission of slaves in 19th century Brazil." In Discourse Of Law, 427–43. London: Routledge, 2022. http://dx.doi.org/10.4324/9781315076096-12.
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Kearney, Amanda, John Bradley, Vincent Dodd, Dinah Norman a-Marrngawi, Mavis Timothy a-Muluwamara, Graham Friday Dimanyurru, and Annie a-Karrakayny. "Conceptualising Indigenous Law." In Indigenous Law and the Politics of Kincentricity and Orality, 1–30. Cham: Springer International Publishing, 2023. http://dx.doi.org/10.1007/978-3-031-19239-5_1.
Анотація:
AbstractLaw is the most immersive of concepts in an Indigenous cultural context. It is a nuanced schema for human existence, and goes beyond a system of justice or governance as might be the conventional and western understanding of law, to shape and give meaning to all aspects of life. Indigenous Law provides the logic and rationale for life, as inclusive of ancestral and creator beings, humans and non-humans, the place world and all types of natural phenomena. Law instates the relations between all emplaced elements and beings.This opening chapter serves to establish the context and scene for a sensitive and respectful discussion of Indigenous Law, acknowledging the varied language that is used around the world to describe and analyse different iterations of Indigenous Laws, ranging from Law, customary law, knowledge, tradition, religion and spiritualism.
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Bustillos, Lorena Ossio. "Bolivia: Normative Equality between State and Customary Law. Utopia or the Future of Hybrid Normative Systems?" In Non-State Justice Institutions and the Law, 100–120. London: Palgrave Macmillan UK, 2015. http://dx.doi.org/10.1057/9781137403285_5.
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Iurlaro, Francesca. "Vattel’s Doctrine of the Customary Law of Nations." In The Invention of Custom, 181–201. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192897954.003.0010.
Анотація:
This chapter focuses on Emer de Vattel’s analysis of customary ius gentium. Relying and expanding on Wolffian philosophy, Emer de Vattel clarifies the relationship between natural law and positive law, by insisting on the fact that, as a source of law, custom is both compliant with natural law and effective as positive law. Furthermore, another important element is Vattel’s insistence on the added value that nations annex to custom, which would otherwise be nothing but a mere usus, carrying no legal meaning or obliging force whatsoever. On the contrary, Vattel manages to bind the persuasive force of custom into compliance with natural law and, ultimately, with the pursuit of self-interest. Finally, Vattel’s concept of custom calls into question the idea of an international legal order where normative principles coexist with practical considerations of expediency.
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Aquino, Caterina. "The Decree-Law in the Pandemic Period." In Handbook of Research on Complexities, Management, and Governance in Healthcare, 156–78. IGI Global, 2022. http://dx.doi.org/10.4018/978-1-6684-6044-3.ch012.
Анотація:
The decree-law was introduced and evolved in the previous statutory system by means of a pure practice, due to the absence of any positive provision in this regard. This, however, determined a deep contrast in the doctrine of the time between those who considered decree-laws as illegitimate acts and those who justified their existence based on necessity as a source of law or based on a customary rule. The Constitution defines decree-laws as “provisional measures having force of law” adopted by Government, under its own responsibility, in extraordinary cases of necessity and urgency. Therefore, the fundamental prerequisite for the Government to adopt the acts in question is represented by the existence of extraordinary cases of necessity and urgency. In essence, the constitutional legislator anchored the adoption of decree-laws to the existence of the requirements of extraordinary necessity and urgency and established that the conversion law must be approved by Parliament within sixty days of the publication of the decree, under penalty of loss of effectiveness thereof from the beginning.
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Kretzmer, David, and Yaël Ronen. "International Law of Belligerent Occupation." In The Occupation of Justice, 55–82. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780190696023.003.0004.
Анотація:
This chapter examines the Court’s decisions on the applicability of the belligerent law of occupation to the Occupied Territories and the enforcement of that body of law by the Court. It explains the distinction the Court has drawn between customary international law and treaty law. The chapter shows that the Court regards the Hague Regulations as customary law but has not taken the same approach to the Fourth Geneva Convention. The Government of Israel adopted the view that the applicability of the Fourth Geneva Convention to the West Bank is questionable, but undertook to respect the Convention’s humanitarian provisions. The chapter shows how the Court has neither accepted nor rejected the government’s view and has left the Convention’s formal applicability as an open question. Nevertheless the Court regularly relies on the Convention and interprets is provisions. The chapter maintains that in interpreting the Convention the Court has vacillated between different theories of interpretation but has consistently adopted the interpretation that favours the government’s position in the particular cases before it.
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Werner, Wouter. "Argumentation through LawAn Analysis of Decisions of the African Union." In Talking International Law, 203–17. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197588437.003.0010.
Анотація:
There is a long-standing dispute between the African Union and the International Criminal Court. At one level, this dispute concerns legal-technical questions such as immunities of heads of states, the identification of customary law, or the scope of resolutions of the UN Security Council. However, underlying these legal disputes are highly political questions regarding recognition, respect, and equality. The African Union has addressed these questions in a series of formal Decisions, adopted by its highest organ, the Assembly of Heads of State and Government. These Decisions reveal what gives the more doctrinal debates their political bite. In addition, these Decisions present the stance of the African Union in the form and with the authority of law, thus binding member states and presenting a unified position vis-à-vis the International Criminal Court and other international audiences. Political struggles are thus partly articulated in legal form, a type of “argumentation through law” that attaches formal validity to claims about membership, recognition, and equality.
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Roscini, Marco. "The Development of the Principle of Non-Intervention from the End of the Religious Wars in Europe to the Outbreak of the Second World War." In International Law and the Principle of Non-Intervention, 9–97. Oxford University PressOxford, 2024. http://dx.doi.org/10.1093/oso/9780198786894.003.0002.
Анотація:
Abstract During the 18th century in Europe, non-intervention became a corollary of state sovereignty as vested in the person of the monarch: as such, it shielded states from external interferences and consolidated internal sovereignty. By the 1830s, the principle of non-intervention was a well-established rule of the jus publicum europæum. In the 19th century’s later half, a distinction emerged between different situations of internal unrest. Intervention without establishing a state of war required states to have either a treaty-based right to do so or a justification excusing the violation. In the period between the two World Wars, states often adopted a position of negative equality with respect to situations of internal unrest in other countries regardless of whether or not belligerency was recognized. While undoubtedly a trend detectable in the state practice of the time, negative equality with respect to civil wars was however not yet an obligation under customary international law.
Тези доповідей конференцій з теми "Between positive law and customary law":
1
Prawesti, Aprilina, Mr Supanto, and Mr Isharyanto. "Transgender Between Culture And Positive Law." In Proceedings of the 1st International Conference on Social Sciences (ICSS 2018). Paris, France: Atlantis Press, 2018. http://dx.doi.org/10.2991/icss-18.2018.261.
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Mazur Kumrić, Nives, and Ivan Zeko-Pivač. "LANGUAGE AND POWER – AN INSIGHT INTO THE REGULATORY FRAMEWORK AND PRACTICE OF LANGUAGE ARRANGEMENTS OF THE COUNCIL OF THE EUROPEAN UNION." In European realities - Power : 5th International Scientific Conference. Academy of Arts and Culture in Osijek, J. J. Strossmayer University of Osijek, 2023. http://dx.doi.org/10.59014/xyfk4735.
Анотація:
The intrinsic nature of language-power relationships has long attracted wide scholarly attention, particularly from the 1980s onwards. In addition to being assigned a classic communication function, language is also seen as a vital tool for demonstrating and exercising political power, that is, a collective power of ethnopolitical communities. This paper looks into the specificities of the language policies of the Council of the European Union both codified and customary, which demonstrate power relations between the Member States of the European Union. The research is based on the legal-dogmatic method as it assesses current positive law, doctrine, concepts, practice, and scholarly literature addressing elements of language arrangements pertinent to the Council. Special emphasis is put on discrepancies between codified rules calling for equality of all EU languages and nurturing linguistic diversity, on the one hand, and daily practices endorsing linguistic imperialism, on the other hand. The paper examines the evolution of language narratives in the founding treaties of the European Union, Council Regulation No. 1/58 determining the languages to be used by the European Union, the Council’s Rules of Procedure, and other relevant documents, and compares them with European realities on the ground. Although the regulatory framework governing the work of the Council is more or less clear regarding the equality of the Member States and their official languages, the power gap and language disbalance remain an ever-present element of the EU environment.
3
Warjiyati, Sri. "Comparative Studies Between Islamic Criminal Law and Positive Law about Castration as Additional Punishment for A Pedophile." In Proceedings of the 3rd Annual International Seminar and Conference on Global Issues (ISCoGI 2017). Paris, France: Atlantis Press, 2019. http://dx.doi.org/10.2991/iscogi-17.2019.30.
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Su, Q., Joseph H. Eberly, and W. G. Greenwood. "Channel closing and power-law scaling in multiphoton ionization." In OSA Annual Meeting. Washington, D.C.: Optica Publishing Group, 1989. http://dx.doi.org/10.1364/oam.1989.fu3.
Анотація:
We present numerical data giving the intensity dependence of the multiphoton ionization rate for two different model atoms. As the intensity increases, the pon-deromotive shift causes peaks in the electron energy spectrum to disappear, one by one, at the threshold. We carefully examine the ionization rate near to and between the intensities at which these ponderomotive channel closings occur. The data have been obtained from ab initio wave functions calculated for 1-D atoms in the presence of intense laser fields. In the first model the potential V ( x ) = − 1 / 1 + x 2 is used to simulate the one-electron binding potential of a typical atom, and in the second model the potential V ( x ) = − exp ( − | x | ) / x 2 + α 2 is used to simulate the binding potential of the extra electron in the H– negative ion. The first potential is quasicoulombic1 with long tails at large ±x and supports a Rydberg series of bound levels near the continuum limit, while the second potential is short range in nature and supports only a single bound state. Both potentials are enclosed in a box (terminated at x = ±L by rigid walls) that is large enough to support a relatively dense set of positive energy states.
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Drabancz, Áron, and Nedim Márton El-Meouch. "Competition law approaches related to the operation of Airbnb in Budapest." In The European Union’s Contention in the Reshaping Global Economy. Szeged: Szegedi Tudományegyetem Gazdaságtudományi Kar, 2022. http://dx.doi.org/10.14232/eucrge.2022.19.
Анотація:
In our study, we examine the operation of Airbnb among the sharing-based companies. We review the operation of Airbnb, the European and American regulatory systems, and examine the economic results of each regulation (e.g. a limit on the number of short-term housing days). Our initial hypothesis is that a regulatory framework can be developed in Budapest, in which the operation of the company is possible without the lives of the residents becoming impossible. In our study, we try to map the economic implications of short-term housing renting with a simple microeconomic calculation and a spatial simulation. Based on the results of our research, the 120-day restriction on annual short-term rent could eliminate investment-type short-term renting and contribute to the reduction of “party districts” in Budapest. An agreement with Airbnb could increase state tax revenues and create a more level playing field between hotels and short-term housing platforms. Our regulatory framework would largely eliminate the negative externalities associated with Airbnb, but at the same time, the positive returns would be greatly reduced.
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Hartong, Mark, Rajni Goel, and Duminda Wijesekera. "Positive Train Control and the Rail Safety Improvement Act of 2008." In 2010 Joint Rail Conference. ASMEDC, 2010. http://dx.doi.org/10.1115/jrc2010-36038.
Анотація:
A series of high profile rail accidents, culminating in a head on collision on September 12, 2008 between a Union Pacific freight train and a METROLINK passenger train in Chatsworth, California, provided the impetus for the passage of the Rail Safety Improvement Act (RSIA) of 2008 (Public Law 110–432). The RSIA mandated the installation of Positive Train Control Systems across the US rail system by December 31, 2015. These new statutory requirements represent one of the most significant changes in US signal and train control systems since the introduction of track circuits and Centralized Traffic Control in the 1920’s. This paper discusses the background which led to the passage of the RSIA, the new PTC requirements imposed by the law, and highlights the significant changes from existing federal safety regulations associated with voluntary PTC implementations that are being adopted by the to meet the law’s requirement.
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Hasan Salameh, Muamar. "The Principle of Separation of Powers between Sharia and the Positive Law: a Case Study on the Constitutional System of Saudi Arabia." In 1st International Conference of Law and Justice - Good Governance and Human Rights in Muslim Countries: Experiences and Challenges (ICLJ 2017). Paris, France: Atlantis Press, 2018. http://dx.doi.org/10.2991/iclj-17.2018.3.
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Mihály, Kristóf. "The Transition from a Feudal Society to a Social Structure based upon Civil Rights in Hungary with Particular Regard to Preparatory Draft Law." In Mezinárodní konference doktorských studentů oboru právní historie a římského práva. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0156-2022-8.
Анотація:
In this study, I review the immediate antecedents of the civil transition as the most profound development. The codification attempts of the Enlightenment of the 1790s and the liberalism of the 1830s and 1840s are the focal points of my doctoral research. In order to drafting bills to reform the feudal state based on customary law and privileges without changing the basic public law framework, nine so-called national regular committees were set forth by Article 67 of Act 1791. The committees completed their work and sent their drafts, known as so-called operatives, to the king between 1792 and 1795. After all, the completed operatives were not put on the agenda of Parliament due to changes in the domestic and foreign policy status quo. They only emerged from the archives of the Chancellery thanks to the committees set up by Article 8 of Act 1827. These committees were responsible for reviewing the “forgotten” operatives, which were finally printed and sent to the counties for comments. The Hungarian liberal noble opposition was organised first as a movement and then as a party during these county debates (1831–1832) in order to replace the feudal system by manifesting the basic principles of the civil transition in the so-called laws of April (representation of the people, the right to private property, equality of rights, burden sharing, etc.)
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Hamah Saeed, Tahseen. "Assumptions and legal and political intellectual principles of positive discrimination of women and their application to the laws in force in the Kurdistan region." In REFORM AND POLITICAL CHANGE. University of Human Development, 2021. http://dx.doi.org/10.21928/uhdiconfrpc.pp149-170.
Анотація:
"This research enters into the field of philosophy of law. He investigated it about the positive differentiation of women in legal thought. After defining the assumptions of the concept, such as the necessity to distinguish between formal equality, and real equality, because positive differentiation is a privilege given to the disadvantaged as if it appears to create inequality, and it is formed until it compensates them with the forbidden, which was practiced before and is now practiced. And that positive differentiation is not only concerned with women but also with all other disadvantaged groups, such as minorities, children and the elderly, even if the female component is more visible. So it entered into the global legislative policy, whether in international law or in national law, so would hold international agreements, hold conferences and establish international organizations for that. Positive differentiation is considered a subsidiary legal principle and complementary to the principle of equality and fairness, and for this existence is related to the existence of that principle, and it is known that the principle are not often written in legislation, but the legislator must take them into account when setting legal rules. Positive the positive differentiation as a legal principle that is observed in global legislation, and the legislator in the Kurdistan region of Iraq tried to observe the principle at a time when the federal legislator did not pay much attention to the principle, and this legislative policy in the region is more in line with the global legislative policy, and this is why the Kurdistan legislator tried to repeal or amend federal law Or legislate new laws in implementation of the principle that fall within its powers, so the anti-family violence law is a perfect example of this, which has no parallel in Iraq so far."
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Khan, Muhammad Azhar. "IMPACT OF FINANCIAL REPORTING QUALITY ON INVESTMENT EFFICIENCY AROUND THE GLOBE." In International Conference on Business, Economics, Law, Language & Psychology, 11-12 January 2024, Paris. Global Research & Development Services, 2024. http://dx.doi.org/10.20319/icssh.2024.3248.
Анотація:
In developed markets, the documented enhancement of investment efficiency due to financial reporting quality has yet to address the question of whether such a correlation persists in emerging, frontier, and diverse markets. This study investigates the association between financial reporting quality and investment efficiency across 21,741 publicly listed firms spanning 36 countries worldwide, encompassing developed, emerging, frontier, and other markets. Comprehensive accounting data spanning the years 2000 to 2022 is gathered for all listed firms in 40 industries across these 36 countries having 166,453 firms-year observations. Causal connections are examined through fixed-effect regression analysis, supplemented by additional tests and robustness checks utilizing alternative proxies. Concerns about endogeneity are mitigated through 2SLS analysis. The results reveal a positive impact of financial reporting quality on investment efficiency for firms in developed, emerging, frontier, and other markets. Our exploration of both over-investment and under-investment scenarios demonstrates a more pronounced link between financial reporting quality and investment efficiency in the underinvestment scenario. These findings contribute to the existing body of evidence, indicating that beyond its influence on investment efficiency in developed markets, the relationship between financial reporting quality and investment efficiency holds true globally. This encompasses emerging, frontier, and other markets, characterized by varying levels of reporting quality and financial frameworks.
Звіти організацій з теми "Between positive law and customary law":
1
Dewan, Sabina, and Lucas Ronconi. U.S. Free Trade Agreements and Enforcement of Labor Law in Latin America. Inter-American Development Bank, November 2014. http://dx.doi.org/10.18235/0011663.
Анотація:
This paper analyzes whether Free Trade Agreements (FTAs) signed between the United States and Latin American countries during the last decade produced higher enforcement of labor regulations. The paper computes before-after estimates of the effect of FTAs on labor inspections and exploits variation across countries using non-signers as a comparison group. The empirical strategy benefits from the fact that about half of Latin American countries have signed a trade agreement with the United States. Difference-in-differences estimates suggest that signing an FTA produced a 20 percent increase in the number of labor inspectors and a 60 percent increase in the number of inspections. The North American Free Trade Agreement (NAFTA), however, does not appear to have the same positive impacts on Mexico. The paper concludes with a discussion of these results.
2
Monge-González, Ricardo, and Federico Torres-Carballo. The Dynamics of Entrepreneurship in Costa Rica: An Analysis of Firm Entry, Exit, and Growth Rates. Inter-American Development Bank, January 2015. http://dx.doi.org/10.18235/0006994.
Анотація:
This study explores for the first time the dynamics of entrepreneurship in Costa Rica based on an analysis of firm entry, exit, and growth rates. Using panel data from 2001 to 2012, it explores the extent to which the growth rates of firms are independent of firm size (Gibrat's law), controlling for age and other possible determinants of growth rates. It also analyzes the question of whether Costa Rica is suffering from the missing middle phenomenon. In addition, it explores the questions of which firms are generating more jobs and which companies show high and sustained growth rates (gazelles). The results show an inverse relationship between size and growth rates of firms, even after controlling for age, which does not agree with the predictions of Gibrat's law. In short, it was found that young and small firms are growing faster than older and larger firms in Costa Rica. However, the results also show that large firms are the only ones whose average size increased between 2001 and 2012. It is clear that Costa Rica is not suffering from the missing middle phenomenon, because although there are a very large number of micro and small firms, there is not a bimodal distribution. Indeed, mid-sized firms are missing, but large firms are missing too, and the fraction of firms of a given size is smoothly declining in firm size in all of the years analyzed. On the other hand, a positive and significant relationship between the growth rates of firms and their export experience was found, as well as between the former and firm participation as a local supplier of multinational companies.
3
Bolton, Laura. Synthesis of Work by the Covid Collective. Institute of Development Studies, March 2022. http://dx.doi.org/10.19088/cc.2022.001.
Анотація:
Overview: This report looked across Covid Collective outputs and grouped findings into three sections. Section 2) Pandemic response; Section 3) Increased marginalisation; and Section 4) Emergent outcomes. Section 4 describes outcomes, both positive and negative, which evolved and were more unpredictable in nature. Pandemic response: Findings on national response highlight shortfalls in national government actions in Bangladesh, Malawi, the Philippines, Yemen, and Syria. Emergency law responses have, in some cases, led states to exert powers with no legal basis. In transitioning economies, state militarisation is having negative effects on constitutionalism and peacebuilding. Lack of trust in state security institutions is identified as an issue in Yemen. Improved consultation between the community, government and security institutions is needed. From a micro perspective, lockdowns were found to hit households close to subsistence the hardest bringing restrictions in to question with regards to welfare choices. Regional responses had different features (outlined in section 2). It is suggested for future research to look at how regional responses have changed interactions between regional and global organisations. The Islamic Development Bank, for example, helped function as a redistribution pool to improve inequalities between country capacities in the Middle East. The Organisation of Islamic Cooperation (OIC) supported accurate information reporting. International response with regard to vaccination is falling short in terms of equality between developed and developing economies. World Bank response is questioned for being insufficient in quantity and inefficient in delivery.
4
Bizer, Kilian, and Martin Führ. Responsive Regulierung für den homo oeconomicus institutionalis – Ökonomische Verhaltenstheorie in der Verhältnismäßigkeitsprüfung. Sonderforschungsgruppe Institutionenanalyse, 2001. http://dx.doi.org/10.46850/sofia.393379529x.
Анотація:
The starting point of the research project was the hypothesis that the "principle of proportionality", which is fundamental to law, is related to the "economic principle". The resulting methodological similarities were intended to enable a cross-disciplinary bridge to be built, which would allow the findings of economic analysis to be made fruitful for legal issues. This was practically tested in three study areas in order to be able to better classify the performance of the analytical tools. The foundations for interdisciplinary bridge building are found in the rational-choice paradigm. In both disciplines, this paradigm calls for an examination of the relationship between the purpose-means-relations: among the design options under consideration, the one must be selected that is expected to be as (freedom- or resource-) sparing as possible, in other words, the most "waste-free" solution to the control problem.The results of the economic analysis can thus be "translated" in such a way that, within the framework of "necessity", they support the search for control instruments that are equivalent to the objective but less disruptive. supports. The core of the positive economic analysis is the motivational situation of those actors whose behavior is to be influenced by a changed legal framework. In this context, the classical behavioral model of economics proved to be too limited. It therefore had to be developed further in line with the findings of research in institutional economics into homo oeconomicus institutionalis. This behavioral model takes into account not only the consequentialist, strictly situational utility orientation of the model person, but also other factors influencing behavior, including above all those that are institutionally mediated. If one takes the motivational situation of the actors as the starting point for policy-advising design recommendations, it becomes apparent that an understanding of governance dominated by imperative behavioral specifications leads to less favorable results, both in terms of the degree to which goals are achieved and in terms of the freedom-impairing effects, than a mixed-instrument approach oriented toward the model of "responsive regulation." According to this model, the law can no longer simply assume that those subject to the law will "obediently" execute the legal commands. It must ask itself what other factors determine behavior and under what boundary conditions changes can be expected in the direction of the desired behavior. For this reason, too, it must engage with the cognitive program of the behavioral sciences. This linkage opens up new perspectives for interdisciplinary research on the consequences of laws.
5
Lylo, Taras. THE IDEOLOGEME «DICTATORSHIP OF RELATIVISM» IN THE ROBERTO DE MATTEI’S ESSAYS: POSTMODERN AND POST-COMMUNIST CONTEXTS. Ivan Franko National University of Lviv, March 2021. http://dx.doi.org/10.30970/vjo.2021.50.11100.
Анотація:
The article considers relativism as a philosophical principle and the moral standpoint of a journalist. In particular, the main argumentation of Roberto de Mattei’s work «Dictatorship of Relativism» is analyzed. Like Ratzinger, the Italian publicist describes modern life as ruled by a dictatorship of relativism which does not recognize anything as definitive and whose ultimate goal consists solely of satisfying «the desires of one’s own ego». In his view, the boundaries of the main conflict of modernity lie between two visions of the world: one that believes in the existence of immutable, absolute values, and one that argues that there is nothing stable, that everything is conditional, time-dependent and can be discussed in the media. The markers of this conflict are our attitude to the famous statement of Protagoras about «man as a measure of all things: of the things that are, that they are, of the things that are not, that they are not», as well as to the non-debatable values, the status of natural and positive law, the worldview neutrality, the dehierarchization and multiplicity of truths, the equalization of all worldviews and axiological standpoint in foreign and Ukrainian media. A special attention in the article is paid to the ideological program of media-relativism, as well as to the postmodern and post-communist contexts of the issue of the penetration of relativism into the journalistic values.
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Colomb, Claire, and Tatiana Moreira de Souza. Regulating Short-Term Rentals: Platform-based property rentals in European cities: the policy debates. Property Research Trust, May 2021. http://dx.doi.org/10.52915/kkkd3578.
Анотація:
Short-term rentals mediated by digital platforms have positive and negative impacts that are unevenly distributed among socio-economic groups and places. Detrimental impacts on the housing market and quality of life of long-term residents have been particular contentious in some cities. • In the 12 cities studied in the report (Amsterdam, Barcelona, Berlin, Brussels, Lisbon, London, Madrid, Milan, Paris, Prague, Rome and Vienna), city governments have responded differently to the growth of short-term rentals. • The emerging local regulations of short-term rentals take multiple forms and exhibit various degrees of stringency, ranging from rare cases of laissez-faire to a few cases of partial prohibition or strict quantitative control. Most city governments have sought to find a middle-ground approach that differentiates between the professional rental of whole units and the occasional rental of one’s home/ primary residence. • The regulation of short-term rentals is contentious and highly politicised. Six broad categories of interest groups and non-state actors actively participate in the debates with contrasting positions: advocates of the ‘sharing’ or ‘collaborative’ economy; corporate platforms; professional organisatons of short-term rental operators; new associations of hosts or ‘home-sharers’; the hotel and hospitality industry; and residents’ associations/citizens’ movements. • All city governments face difficulties in implementing and enforcing the regulations, due to a lack of sufficient resources and to the absence of accurate and comprehensive data on individual hosts. That data is held by corporate platforms, which have generally not accepted to release it (with a few exceptions) nor to monitor the content of their listings against local rules. • The relationships between platforms and city governments have oscillated between collaboration and conflict. Effective implementation is impossible without the cooperation of platforms. • In the context of the European Union, the debate has taken a supranational dimension, as two pieces of EU law frame the possibility — and acceptable forms — of regulation of online platforms and of short-term rentals in EU member states: the 2000 E-Commerce Directive and the 2006 Services Directive. • For regulation to be effective, the EU legal framework should be revised to ensure platform account- ability and data disclosure. This would allow city (and other ti ers of) governments to effectively enforce the regulations that they deem appropriate. • Besides, national and regional governments, who often control the legislative framework that defines particular types of short-term rentals, need to give local governments the necessary tools to be able to exercise their ‘right to regulate’ in the name of public interest objectives.
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Relationship Between ‘Civil Society’ and ‘Democratic Freedoms’. Institute of Development Studies, June 2022. http://dx.doi.org/10.19088/k4d.2022.086.
Анотація:
Notwithstanding the point that definitions of ‘civil society’ and ‘democracy’ are themselves actively debated, this rapid review defines democracy as ‘liberal democracy’, which goes beyond elections to include liberal components such as equality before the law, individual liberties, rule of law, and independent judiciary and legislature that constrains the executive (Grahn and Lührmann, 2020, p.8). Civil society is defined as “an organizational layer of the polity that lies between the state and private life composed of voluntary associations of people joined together in common purpose” (Coppedge et al. 2016, p.413). Thus, this rapid review seeks to find out what evidence is there on the relationship between civil society and democratic freedoms? The overall sense from the vast array of literature that looks at the relationship between civil society and democratic freedoms is that civil society is important for democracy, but there is no “automatic flow” from one to the other. Rather, the relationship is contingent on the nature of civil society, in addition to other dynamic, context-specific factors. Most of the evidence found during this rapid review was in studies that break down this broad topic into smaller sub-questions. They tended to be case studies that look at specific elements of ‘democratic freedoms’ (e.g., human rights, or anti-corruption), focus on specific countries, or were related to specific mechanisms (e.g., collective action) or processes (e.g., democratic regression). Each of these sub-topics is itself a large and contested area of research. According to some scholars, these case studies are overwhelmingly positive about civil society’s relationship to liberal democratic norms and practices. Some studies show that democratic regression occurs where the demands of a highly mobilised civil society cannot be effectively channelled by the party system or occur in contexts characterised by ethnic and regional differences or socio-economic inequalities.
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The space between: Analysis of gender and ethnicity pay gaps in UK-based organisations active in global health. Global Health 50/50, November 2023. http://dx.doi.org/10.56649/zhpp4836.
Анотація:
Inequalities in opportunities, power and privilege are evident in our working lives. Historical structures shape opportunities in the career pipelines of different groups of people, including access to education, recruitment and promotion, occupational segregation and the so-called ‘motherhood penalty’. Often these dynamics result in certain groups, particularly men and traditionally privileged ethnic groups, occupying higher status and better paid positions, than other groups – resulting in what are called ‘pay gaps’. Increasing transparency on pay gaps helps to ensure that employers are being fair in providing equitable (fair) opportunities and reducing inequalities across the workforce it also holds them accountable for closing the gap. In the UK, reporting the gender pay gap has been mandatory since 2017 for organisations with more than 250 employees. The law has driven an unprecedented level of transparency on the gender pay gap in the UK and provided valuable information to employers and employees on inequality inside their organisations. To date, however, reporting the ethnicity pay gap remains voluntary. Global Health 50/50 (GH5050) tracks and publicises the policies and practices of nearly 200 organisations active in global health for their commitments to gender equality. This Report takes a deep dive into the reporting of gender and ethnicity pay gap data of 43 organisations in the GH5050 sample which have a presence in the UK. This Report focuses specifically on UK-based organisations given the general lack of pay gap reporting worldwide. The Report finds that, between 2017 and 2022, some progress was made in closing the gap – from 12.7% to 10.9% for median pay gap, and from 14.3% to 10.8% for mean pay gap. A quarter of organisations, however, saw an increase in their gender pay gap by a median 3.6 percentage points. In the absence of mandatory reporting, we found that only 13 organisations voluntarily reported their ethnicity pay gaps in 2022, mostly reporting binary gaps between white and ethnic minority employees. While binary reporting in isolation is generally not recommended, it may be needed to protect salary information of ethnic minority employees when numbers of employees are small. Among this (limited) data, we found a median gap of 3.7% and a mean gap of 6.9% favouring white employees. This Report finds that there has been some positive change since mandatory gender pay gap reporting was introduced in 2017. Yet slow and uneven progress indicates a clear need for continued advocacy to ensure pay gap transparency and to close the gender pay gap. This advocacy should include the expansion of mandatory pay gap reporting to include ethnicity; and for very large organisations, an intersectional approach to the data (combining gender and ethnicity, for example) will provide even more nuance and understanding of where action is needed. Even in the absence of legislative requirements, employers in global health, which are often working to advance social justice and gender equality, should act as models for career equality including by publicly reporting pay gap data. This data can inform target-setting and the development of policies to reduce the gap, such as including multiple women in shortlists for recruitment and promotion, and transparency in pay negotiations. Closing the unjust space between women’s and men’s pay is an urgent priority and would ensure that women are equally and fairly paid for their contributions to organisations and to society. Increasing transparency of the pay gaps will rely on more countries passing legislation, as a critical component of comprehensive frameworks for diversity, inclusion and equality in the workplace.
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Financial Infrastructure Report 2022. Banco de la República, June 2023. http://dx.doi.org/10.32468/rept-sist-pag.eng.2022.
Анотація:
Banco de la República's monitoring of the local financial market infrastructure is an additional contribution to the country's financial stability. One of the products of that monitoring has been the Payment Systems Report, which is now known as the Financial Infrastructure Report. The change in name, as of this edition, is intended to reflect in a broader way the issues that are addressed in the report. The 2022 edition includes several changes that are the result of a comparative study of financial infrastructure reports prepared by other central banks. These changes seek to make the report more fluid and easier to read, including main points and selected key figures for the different interest groups to which it is addressed. The report shows the financial infrastructure continued to render its services without interruption, with general evidence of good performance in 2021. Additionally, the resilience of the Central Counterparty Risk of Colombia (CRCC) and the Large-value Payments System (CUD) to extreme events was validated, based on stress tests conducted according to international standards (focused on liquidity and credit risk). As for retail payments, transactional information indicates the use of electronic instruments increased in terms of value during 2021 compared to 2020 (credit and debit cards, checks and electronic funds transfers). The use of debit and credit cards in payments rose to levels similar to those reached in the pre-pandemic year. Meanwhile, electronic funds transfers continued to grow. Although the results of the BR 2022 survey show cash continues to be the instrument most used by the public for regular payments (like the situation in other countries), the perception of its use decreased significantly to 75 % (87 % in 2019). Also, in commerce, cash was the preferred instrument for customers. However, in this measurement, several retail channels such as hairdressers, drugstores and restaurants joined the group that has traditionally received electronic payments for a value greater than 10% of their sales (hypermarkets and gas stations). Likewise, for nearly 50% of the population, cash payments are lower than before the pandemic. This is consistent with the transactional increase in electronic payment instruments that was observed in 2021. Banco de la República continues to monitor the technological developments that have expanded and modernized the supply in the international and local payments market, as these are issues of interest to the industry that provides clearing and settlement services. This report outlines the Pix case for instant payments in Brazil, the projects that are underway regarding the possible issue of digital currency by central banks (CBDC) for cross-border payments, as well as an approach to the Fintech ecosystem in Colombia, with an emphasis on companies that provide payment services. Leonardo Villar Governor Main points: 2022 The local financial infrastructure was safe and efficient throughout the year. The services of the financial infrastructure were proved on a continuous basis, showing good performance overall. Less momentum in the large-value payment system CUD activity declined versus the previous year because of fewer government deposits with BanRep. This was offset partially by growth in repos to increase money supply and in retail-value payments (electronic funds transfers, checks and cards). Increased momentum in financial market infrastructures. Larger amounts were cleared and settled through the Central Securities Depository (DCV) due to an increase in the market for sovereign debt. Operations managed by the Central Counterparty Risk of Colombia (CRCC) increased due to inclusion of the foreign exchange segment and the positive evolution in non-delivery forward peso/dollar contracts. Added confidence in the peso/dollar spot foreign exchange market due to CRCC interposition. Number and value of trades grew, mainly due to the adjustment of therisk management model for the FX segment and the increase in the limiton net selling positions in dollars. Stress testing with international standards to validate CRCC and CUD resilience Stress tests conducted independently by the SFC, BanRep and the CRCC, like those done in England and the United States, concluded that the CRCC's risk management model allows it to withstand extreme market events and simultaneous defaults by its main members. Based on the experience of other central banks, BanRep strengthened its intraday liquidity risk stress exercises in the CUD by incorporating temporary payment delays. It calculated that a two-hour delay by a key participant increases the system's liquidity needs by 0.5%. Electronic payments increased during 2021 According to transactional information, all electronic payment instruments increased in value versus 2020 (electronic funds transfers, checks and debit and credit cards). Electronic funds transfers continued to grow (80% from legal entities), with the participation of closed schemes driven particularly by the use of mobile wallets (35% of the number of intra-transfer transactions). The use of debit and credit cards for payments climbed to levels similar to those witnessed in the pre-pandemic year. Cash continues to be the instrument most used by the public for regular payments. The results of the BanRep survey in 2022 show that the perception of the use of cash declined significantly to 75% (87% in 2019), and about 50% of the population perceive their cash payments as being lower than those they made before the pandemic. Electronic funds transfers were second most used instrument, having increased to 15% (3% in 2019). Also, in commerce, cash was the preferred instrument of payment for its customers; however, several commerce channels received more than 10% of the value of their sales in electronic payments (hypermarkets 35%, gas stations 25%, hairdressers 15%, drugstores 14% and restaurants 12%). Continuous technological developments have broadened, and modernized services offered in the payments market. Pix (instant payments in Brazil). The high level of adoption of instant transfers in Brazil motivated a review of its strengths; namely, the possibility of different use cases between individuals, businesses, and government; high participation by financial and payment institutions; free of charge for individuals and the possibility of charging legal entities, and simple user experience. Digital currencies in central banking. Several groups of countries have joined forces to conduct pilot projects with wholesale CBDCs for cross-border payments. Flows generated by international trade, foreign investment and remittances between individuals can be processed more efficiently, transparently, and securely by reducing their cost and increasing their speed. Due to the constant progress being made on this issue, BanRep will continue to monitor all CBDC-related matters. The fintech ecosystem for payments in Colombia. A high percentage of existing FinTech companies in the country are dedicated to offering digital payment services: wallets, payment gateways, mobile devices (point-of-sale terminals) and acquisition. These have driven innovation in payment services.