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Статті в журналах з теми "Extra-legality"
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Kirkpatrick, Jennet. "Democracy on the lam: Crisis, constitutionalism and extra-legality." Contemporary Political Theory 11, no. 3 (September 20, 2011): 264–84. http://dx.doi.org/10.1057/cpt.2011.28.
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Schmidt, Julia. "The Legality of Unilateral Extra-territorial Sanctions under International Law." Journal of Conflict and Security Law 27, no. 1 (February 15, 2022): 53–81. http://dx.doi.org/10.1093/jcsl/krac005.
Повний текст джерелаАнотація:
Abstract Following its withdrawal from the Joint Comprehensive Plan of Action, the USA re-imposed economic and financial sanctions against Iran. Its current unilateral sanctions regime against the country contains extra-territorial sanctions which prohibit non-US nationals and non-US companies from trading with and investing in Iran. Foreign legal and natural persons who do not comply with the US extra-territorial legislation are faced with a variety of limitations, including access restrictions, fines and penalties. Thereby they not only put pressure on operators worldwide but also interfere with the sovereign foreign policy choices of states and international organisations such as the European Union (EU) who support legitimate trade with Iran. Equally problematic are the extra-territorial sanctions contained in the US sanctions regime against Cuba. The article examines the lawfulness of unilateral extra-territorial sanctions as a form of targeted sanction under international law in the relationship between the sanctioning state and other sovereign international actors affected by the extra-territorial legislation in light of the customary law on jurisdiction, the law on sanctions as well as the principle of non-intervention. The relationship between the US and the EU and its Member States will be taken as an example. It will be shown that unilateral extra-territorial sanctions may amount to an abuse of rights in case they are functionally connected to primary sanctions that violate jus cogens norms or that undermine the UN Charter system, irrespective of the strength of the exercised economic pressure.
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Obaretin, Igbinedion. "Extra-Legal Legality: Orientalism and Biopolitics in a State of Exception." International Journal of Comparative Literature and Translation Studies 6, no. 3 (July 31, 2018): 1. http://dx.doi.org/10.7575/aiac.ijclts.v.6n.3p.1.
Повний текст джерелаАнотація:
With recourse to the poetry of Guantanamo’s detainees, this article describes the extra-legal legality that typifies the conception and activities of post-9/11 terror-suspect prison camps. It argues that the state of exception, which has become integral in the war on terror, is not a product of necessity, but a reflection of the interplay between biopolitics, biopower, and Orientalism in the post-9/11 era. By considering the ways in which Guantanamo detainees employ poetry to plead their innocence and exhibit their suffering body as political subjects and objects, this article pays careful attention to the aesthetics of Guantanamo poetry and how it reveals the poets’ individual humanity against the fabric of the brutality and illegality packaged ironically as the ‘war on terror’.
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Sampson, Terwase Isaac, and Hemen Philip Faga. "Extra constitutional or ultra vires: debating the constitutionality and legality of Islamic banking in Nigeria." International Journal of Public Law and Policy 7, no. 4 (2021): 291. http://dx.doi.org/10.1504/ijplap.2021.118894.
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Faga, Hemen Philip, and Terwase Isaac Sampson. "Extra constitutional or ultra vires: debating the constitutionality and legality of Islamic banking in Nigeria." International Journal of Public Law and Policy 7, no. 4 (2021): 1. http://dx.doi.org/10.1504/ijplap.2021.10041389.
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Ikhwan, Ikhwan. "Asas Retroaktif pada Kasus Pelanggaran HAM (Perspektif Hukum Islam)." Ulumuna 13, no. 1 (June 30, 2009): 59–80. http://dx.doi.org/10.20414/ujis.v13i1.372.
Повний текст джерелаАнотація:
The principle of retroactiveness in The Act, Number 26 in 2000 on Human Rights Jurisdiction provokes pros and cons. In one hand, severe violence against human rights is an extra ordinary crime that requires special treatment. On the other hand, retroactive legislation is against the principle of legality.
In Islamic law, an act is considered a crime if it is proven by juridical evidences. An act is not considered a crime unless there is punishment for it. Therefore, every juridical decision adheres to the principle of legality that limits the extent of a law just for the future, not retroactive. According to most Muslim scholars, the principle of retroactiveness could be implemented if a new law is more just and humane without breaking the attainment of law ends. Implementation of the principle for severe violence against human rights is not allowed because it does not meet such requirement.
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TRAN, Thi Quang Hong. "The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context." Asian Journal of Law and Society 6, no. 01 (January 16, 2019): 159–79. http://dx.doi.org/10.1017/als.2018.44.
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AbstractNotwithstanding its defining feature of normative pluralism, the socialist state of Vietnam basically adopts a legal centralist approach to regulation. The judiciary is arguably the most illustrative of this approach, since it is the main forum where legal centralism encounters normative pluralism. Our research examines the choice of norms in judicial adjudication in Vietnam to check the effectiveness of its legal centralist approach. It finds that, despite lacking institutional support, judges managed to apply customary norms at their discretion against the state’s emphasis on top-down legal rules. A legitimacy-based analysis explains this phenomenon. It points out that judges conceptualized their legitimacy under the influence of both legal and extra-legal rules, thus making it apart from the legality. Judges attempt to bridge the gap between legitimacy and legality enabled de factor normative pluralism. In looking at the influence of customary norms over judicial adjudication, the article aims to make both theoretical and practical contributions. Theoretically, it enriches the scholarship of normative pluralism by showing how legitimacy-building keeps normative pluralism effective, irrespective of the dominating legal centralism. Practically, it proffers insightful implications for the ongoing court reforms in Vietnam based upon the findings.
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Oguno, Prof P. E. O., and Michael O. Nnalue. "ULTRA VIRES AND THE LIMITS OF LEGALITY OF THE UNITED NATIONS SECURITY COUNCIL (UNSC)." American Journal of Law 2, no. 1 (January 3, 2020): 1–14. http://dx.doi.org/10.47672/ajl.443.
Повний текст джерелаАнотація:
The United Nations Security Council (UNSC) is, in many ways, a unique institution. It exercises legislative, judicial and executive powers; operates with few legally binding checks and balances and has even been described as being ‘unbound by law’. The UNSC represents one of the organs of the United Nations. The Council has broad powers to maintain international peace and security, most notably under Chapter VII of the UN Charter, and its decisions are binding on UN members. At the same time, some of the Council’s actions have been labelled as ultra vires and the lack of a binding, legal oversight mechanism to reign in Council action has been decried. Accepting that there is a difficulty in imposing legally binding checks and balances on the UNSC, this article argues that approaching the Council’s Chapter VII powers as a form of emergency powers may help to illuminate the role that non-legal restraints can play in curbing its power. In particular, this article uses Oren Gross’ ‘extra-legal measures model’ to show how the extra-legal measures model offers a descriptive account of UNSC action under Chapter VII and then builds on the gap in the application of the model to the Council to highlight areas for the development of better restraints. The first section provides a brief history of the United Nations as an International Institution; the second section sketches the United Nations Security Council and its powers under Chapters VI and VII of UN Charter; the third section looks at the Ultra Vires acts of the UNSC; the concluding section looked into various models and most especially “Oren Gross” model as an extra legal measure that would provide answer to the limits of legality of the UNSC. To achieve this, the work explored various relevant literatures and also using data and information retrieved from both the primary sources and secondary sources as reference bank.
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Aziz, Ibrahim. "LEGALITY ASPECTS OF SHARIA BANKING IN INDONESIA." Melayunesia Law 6, no. 1 (June 30, 2022): 1. http://dx.doi.org/10.30652/ml.v6i1.7851.
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Islamic banking in Indonesia has existed for a long time, namely within the 1980s whilst several Islamic activists performed research on Islamic economics who recommended Islamic banking, even working towards it on a limited scale, together with through Bait at-Tamwil Salman, Bandung. Extra intensive efforts had been made in the 1990s, which culminated in the IV countrywide Deliberation of the Indonesian Ulema Council (MUI) in Jakarta, 22-25 August 1990 which led to a mandate to form a working group for the status quo of Islamic Banking in Indonesia known as the MUI Banking group. The end result of this team’s work is what is normally referred to as the establishment of PT bank Muamalat Indonesia (BMI), November 1, 1999, with an initial capital of more than IDR 106 billion. Several years later, Islamic banks emerged which includes independent Islamic banks, BNI Syariah, Mega Syariah banks and so forth. The sharia banking regulation itself is urgently wished for numerous motives, namely: in step with Indonesia's national development dreams to attain the advent of a just and prosperous society primarily based on economic democracy, it's far necessary to broaden an economic gadget primarily based on justice, togetherness, fairness and advantage. Islamic banking is the handiest instinct that is most appropriate to translate the above country wide development goals into real existence.Keywords: Legality, Sharia Banking, Islamic economics
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Whittle, D. "The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action." European Journal of International Law 26, no. 3 (August 1, 2015): 671–98. http://dx.doi.org/10.1093/ejil/chv042.
Повний текст джерелаДисертації з теми "Extra-legality"
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GINOCCHIO, LINARES FRANCESCO. "The governance of informal street vending: Regulation, extortion and marginality in Gamarra, Lima - Peru." Doctoral thesis, Gran Sasso Science Institute, 2021. http://hdl.handle.net/20.500.12571/22882.
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Informal street vending has historically been a recurring phenomenon in various cities around the world, which has attracted the attention of academic research in the social sciences. Initially addressed from theoretical debates on political economy (Chen, 2006), in recent decades considerable attention has been given to studies on urban planning and governance (Devlin, 2011; Le Galès & Vitale, 2014; Roy & Roy, 2016; Yiftachel, 2009). In particular, this thesis aims to widen the existing scholarly knowledge on the governance of informal street vending in cities, by developing an exploratory analysis of the legal and extra-legal governing practices used to control this economic activity, with special emphasis on the power relations that govern public spaces and their configuration.
For this purpose, the case study of the informal street vending in the textile cluster of Gamarra, the city of Lima, Peru, is presented. Several bodies of literature contribute to the conceptual framework of the thesis: regulation as a governing practice; extractive capacity of the state; and theories on urban marginality. I use qualitative methods to analyse the primary data collected through 84 semi-structured interviews in Spanish with state and non-state actors, plus participant observation and documentary analysis.
The thesis is composed of three academic papers investigating separate issues of the governance of informal street vending. In Paper 1, the research questions the role of regulation as a tool for governing informality. A fact that tends to be controversial due to the antithesis involved in regulating an economic activity that by definition operates outside the law. When delving into such relationship between regulation and informality, it was noted that both its development and its enforcement by local authorities were used on various occasions to maintain and strengthen the presence of informal street vendors in the area. The paper emphasizes then how regulation can also be used to create a system of deregulation through legal means. Paper 2 focuses on the analysis of the state's fiscal capacity to understand the governance of informal economic activities. This paper highlights the role of two governance mechanisms employed by the local government to expand its extractive capacity towards informal street vendors: governance arrangements and extra-legal practices. Findings suggest that both were customized to the needs of the social structure over which the coercive power of the state is exercised. Finally, Paper 3 seeks to address the management of informal street vending based on its configuration as a form of marginalization. Specifically, the analysis presented in this paper addresses the effects of the condition of marginality in the livelihoods of informal street vendors under particular circumstances like the one of the COVID-19 outbreak. Through the analysis carried out, it was possible to notice the shortcomings of both market self-regulation and social control mechanisms oriented to deal with urban marginality. The importance of doing so lies in exposing the policy implications of choosing between livelihood and health when governing those at the urban margins.
Книги з теми "Extra-legality"
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David, Kretzmer. Part 3 The Post 9/11-Era (2001–), 57 US Extra-Territorial Actions Against Individuals: Bin Laden, Al Awlaki, and Abu Khattalah—2011 and 2014. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198784357.003.0057.
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This chapter discusses the targeted killing by the US of Osama bin Laden in Pakistan and of Anwar al Awlaki in Yemen, and the capture of Ahmed Abu Kattalah in Libya. It presents the facts and context of the actions, the legal position of the US and other protagonists and reactions in the international community. It proceeds to discuss the arguments for and against the legality of these extra-territorial actions by the US under law regarding use of force (but not under ius in bello). In the final section it is argued that rather than having precedential value the actions and reactions in these cases serve to emphasize the wide gap that exists in the different perceptions of states and scholars regarding the law on the extra-territorial use of force against terrorist groups or other groups of non-state actors.
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Colón-Ríos, Joel. Constituent Power and the Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198785989.001.0001.
Повний текст джерелаАнотація:
This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.
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O’Connell, Mary Ellen, and Caleb Day. Sources and the Legality and Validity of International Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0027.
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This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.
Частини книг з теми "Extra-legality"
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Garcia Flores, Brenda Gisela. "The Emergence of Necrosecurity: On the Extra-Legality of the Rule of Law and the Death of the Willful Subject." In Necropower in North America, 153–74. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-73659-0_8.
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"Models of Extra-Legality and Illegality: Carl Schmitt's Lengthening Shadow." In Emergency Powers in Theory and Practice, 113–42. Routledge, 2017. http://dx.doi.org/10.4324/9781315563282-6.
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Busuioc, E. Madalina. "Extra-Judicial Accountability: The European Ombudsman and ‘Life beyond Legality’1." In European Agencies, 221–45. Oxford University Press, 2013. http://dx.doi.org/10.1093/acprof:oso/9780199699292.003.0009.
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Vatter, Miguel. "Leo Strauss and the Concrete Order of Law." In Living Law, 191–236. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197546505.003.0006.
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This chapter is dedicated to Leo Strauss’s attempt to recover the medieval Islamic and Jewish conceptions of the prophet as a political founder of the perfect legal order. The chapter situates Strauss’s political theology within the Weimar debate between proponents of legality and defenders of an extra-legal conception of legitimacy. It argues that Strauss turns back to the ancient conception of law as nomos in order to give a philosophical foundation to legality beyond Christian conceptions of legitimacy. Christian political theology has always pivoted around the polemical claim that Mosaic law was “tyrannical” in some way. Strauss’s contribution to Jewish political theology consists in examining Jewish and Islamic prophetology by formulating it in terms of the so-called tyrannical teaching of Platonic political philosophy. The chapter shows that Strauss ultimately held to the view of a profound compatibility and mutual need between the traditions of Greek philosophy and biblical prophecy.
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White, Jonathan. "Principled Disobedience." In Politics of Last Resort, 147–66. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198791720.003.0008.
Повний текст джерелаАнотація:
One legacy of yesterday’s politics of emergency is that the contestation of policy in today’s EU may depend on a willingness to break rules. The concept of disobedience provides both an interpretative frame for analysing such actions and the basis for their evaluation. As a contribution to theories of civil disobedience, the chapter reflects on the kinds of political agent that can lead such actions, showing how one of the distinctive features of the transnational realm is to make possible a form of disobedience waged through institutions by collectives such as parties. The chapter goes on to develop criteria by which to distinguish principled disobedience from illegitimate forms of extra-legality, connecting them to developments on the ground. The chapter concludes with some reflections on the normativity of exceptionalism more generally.
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Allen, Jason Grant, and Peter Hunn. "Editors’ Introduction." In Smart Legal Contracts, 1–22. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780192858467.003.0001.
Повний текст джерелаАнотація:
This chapter outlines the genesis of, and background to, the volume as the first interdisciplinary exposition of the ‘smart legal contract’. In doing so, it provides an assessment of many of the critical issues that arise from the interface between law and technology as they pertain to computational contracts. Topics include notable developments in law and practice, the issues of ‘smart contract’ terminology and ostensible extra-legality, and the emerging techno-legal concept of the ‘smart legal contract’. Allen and Hunn proceed to frame the ‘smart legal contract’ as a ‘contract stack’ combining human-readable and machine-readable artefacts capable of being arranged to incorporate both the traditional recordation functions of written contracts with software-based operationalization of contractual obligations. The future development of terminology is suggested. The chapter concludes by introducing the author chapters and their contribution to the volume as a landmark in the literature on computational contracting.
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Colón-Ríos, Joel. "The Material Constitution." In Constituent Power and the Law, 186–225. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198785989.003.0008.
Повний текст джерелаАнотація:
This chapter explores the way in which several authors understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the legal limits of the ordinary power of constitutional reform. Part I begins with a brief examination of the historical development of the distinction between the amending and the constituent power. Part II examines the place of the concept of super-legality in Hauriou’s work. For this author, constitutional super-legality includes not only the content of a written constitution protected by a special rule of change, but also the fundamental principles that stand above the constitution itself. Part III introduces Kelsen’s conception of the material constitution which, unlike Hauriou’s, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles. In Part IV, this ‘descriptive’ approach will be contrasted with that of Schmitt. Somewhat counter-intuitively, under Schmitt’s approach, the frequent appeal to an unlimited and unmediated constituent subject leads to the attribution of limited competences to the amending authority. Part V shows how Heller’s conception of the material constitution, although at first sight appearing as a successful synthesis of Kelsen and Schmitt, provides no clear basis for justifying the protection of the material constitution through the legal appeal to an extra-legal constituent authority. Finally, the chapter examines Mortati’s views about the material constitution’s potential role in justifying the imposition of legally enforceable limits on the amending authority.
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Cesarz, Maciej. "Kolonizacja Marsa i innych ciał niebieskich: wyzwania natury prawnej i politycznej dla Unii Europejskiej." In Polityka kosmiczna Unii Europejskiej: Zagadnienia prawne, polityczne i ekonomiczne, 163–83. Ksiegarnia Akademicka Publishing, 2022. http://dx.doi.org/10.12797/9788381387750.08.
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Expansion is a part of humanity’s nature and space exploration and colonization of extra-terrestrial objects forms the next stage of its civilizational development. Achievements in science and technology in the second half of the twentieth century made it possible to send humans into an extraterrestrial orbit and then to land on the Moon and to build an extraterrestrial facility in the form of the International Space Station. Today, the activities of space stakeholders are shifting from the public to the private sector, making the prospect of colonizing other Solar System objects, particularly Mars, increasingly feasible. This initiative, taken up by the European Union among others, is nevertheless associated with a number of challenges, traditionally identified with obstacles of a technical nature that determine the feasibility of this project. The legal and political aspects, in particular the legality of the colonization of the Red Planet, remain generally neglected in discussions on the exploration of celestial bodies, despite the fact that the practical usage of non-atmospheric space is regulated by international space law. This chapter is devoted to a critical analysis of the laws and principles that are or may be applicable to human activities in space with regard to Mars colonization and, to a lesser extent, the political situation of Mars, which may be relevant from the perspective of the European Union.
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Finkelstein, Claire. "Fighting State Actors with the Tools of Hybridized Warfare." In Between Crime and War, 153—C6.N46. Oxford University PressNew York, 2023. http://dx.doi.org/10.1093/oso/9780197638798.003.0007.
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Abstract With the killing by the United States of Iranian general Qassim Soleimani, the war on terror crossed a new frontier in the use of extra-judicial lethal operations outside of armed conflict. As a state actor, Soleimani would once have been entirely off-limits as a target outside the context of a formal armed conflict between the U.S. and Iran, despite his leadership of the Quds force, an organization that lends support to violent nonstate actor groups across the Middle East. Nevertheless, the fact that the Trump Administration felt entitled to conduct a one-off strike on a state military leader using drone technology underscores the degree to which conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This chapter will argue that the rise in the use of such techniques, and the perceived relaxation of the constraints of international law in conflicts among states, is a regrettable, but foreseeable, result of a certain way of conceiving of violent nonstate actors that started immediately after the attacks on 9/11. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods as well as Obama’s dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development and ensured that the techniques of the war on terror were constrained to their original context. This chapter first addresses the legal ambiguity of targeted killing as it devolved from the Bush and Obama Administrations in the aftermath of 9/11 with respect to nonstate actors, particularly the decision to predicate the legality of targeted killings on the status of terror groups as “unlawful combatants.” This framework meant that the detainees captured in the war on terror lacked the traditional protections of the Law of Armed Conflict (LOAC), at the same time that they were deprived of the protections ordinarily extended to criminal defendants. Leaving detainees between two legal regimes provided license for their abuse as well as an uncertain legal basis for those who were targeted rather than captured in the next phase of the war. This chapter will argue that greater clarity would have resulted from considering violent non-state actors as civilians rather than combatants, an approach that is wholly in appropriate for state actors like Soleimani, whose status as a state actor should leave little doubt as to his legal status outside the context of armed conflict..
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Aggarwal, Rashmi. "Dispute Settlement for Cyber Crimes in India." In Interdisciplinary Perspectives on Business Convergence, Computing, and Legality, 160–71. IGI Global, 2013. http://dx.doi.org/10.4018/978-1-4666-4209-6.ch015.
Повний текст джерелаАнотація:
Cyber law is law of the Internet; hence, any crime on the Internet is basically cyber crime. It is committed on cyber space, but all the pre mediation is an act of individual/s, who are the perpetrators of crime with malicious intentions and commission of these acts. Cyber crimes were initially perceived as a subset of Information Technology (IT) laws, which governed the digital dissemination of both digitalized information and software. Digital information includes information security and electronic commerce. However, as the world became subservient to digitalization, cyber/Internet laws became more pronounced in their origin and are now a special branch of Internet laws. These laws include study of Internet access and usage, privacy rights, freedom of expression, and extra territorial jurisdiction issues. This chapter analyzes the cyber laws in India and raises the issues of criticality of provisions relating to dispute resolution in India.