Legal Continuity

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Comparative Study ◽  
Social Theory ◽  
Legal Theory ◽  
Legal Order ◽  
Critical Legal Theory ◽  
The Law ◽  
The Comparative Study ◽  
The Revolution

This chapter critiques the binary dichotomy between the concepts of “continuity” and “rupture” within theoretical conceptualizations of the law. Whereas legal theories such as Kelsen’s emphasize rupture, theories such as Dworkin’s emphasize continuity. These theories fail to account for legal continuity and rupture because the law is neither a gapless system nor a coherent whole. Building on the comparative study of the role of law during revolutions, the chapter shows that a revolution maintains varying levels of legal rupture and continuity with the pre-existing legal order. Building on critical legal theory and social theory, it argues that the relation between revolution and legality cannot be represented systematically because law—whether prior to or after the revolution—is incoherent and thus generates a plurality of voices.

The social uses of the law at a Soweto garbage dump: Reclaiming the law and the state in the informal economy

2016 ◽  
Vol 65 (2) ◽  
pp. 222-234 ◽  
Author(s):  
Melanie Samson
Keyword(s):  
Informal Economy ◽  
Research Agenda ◽  
Legal Theory ◽  
Social World ◽  
The State ◽  
Informal Workers ◽  
The Social ◽  
Critical Legal Theory ◽  
The Law ◽  
Social Uses

The informal economy is typically understood as being outside the law. However, this article develops the concept ‘social uses of the law’ to interrogate how informal workers understand, engage and deploy the law, facilitating the development of more nuanced theorizations of both the informal economy and the law. The article explores how a legal victory over the Johannesburg Council by reclaimers of reusable and recyclable materials at the Marie Louise landfill in Soweto, South Africa shaped their subjectivities and became bound up in struggles between reclaimers at the dump. Engaging with critical legal theory, the author argues that in a social world where most people do not read, understand, or cite court rulings, the ‘social uses of the law’ can be of greater import than the actual judgement. This does not, however, render the state absent, as the assertion that the court sanctioned particular claims and rights is central to the reclaimers’ social uses of the law. Through the social uses of the law, these reclaimers force us to consider how and why the law, one of the cornerstones of state formation, cannot be separated from the informal ways it is understood and deployed. The article concludes by sketching a research agenda that can assist in developing a more relational understanding of the law and the informal economy.

scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

Feminist Approaches to International Law

1991 ◽  
Vol 85 (4) ◽  
pp. 613-645 ◽  
Author(s):  
Hilary Charlesworth ◽  
Christine Chinkin ◽  
Shelley Wright
Keyword(s):  
Legal System ◽  
Cultural Context ◽  
Legal Theory ◽  
Central Feature ◽  
Legal Analysis ◽  
Feminist Jurisprudence ◽  
The Law ◽  
Immediate Experience ◽  
Political Economic

The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

Performing International Systems: Two East-Asian Alternatives to the Westphalian Order

2012 ◽  
Vol 66 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Erik Ringmar
Keyword(s):  
Comparative Study ◽  
East Asian ◽  
First Century ◽  
Opinion Formation ◽  
Interstate Relations ◽  
The World ◽  
The Comparative Study ◽  
International Systems ◽  
Historical Periods

AbstractThis article provides a framework for the comparative study of international systems. By analyzing how international systems are framed, scripted, and performed, it is possible to understand how interstate relations are interpreted in different historical periods and parts of the world. But such an investigation also has general implications—inter alia for a study of the nature of power, the role of emotions in foreign policymaking, and public opinion formation. Case studies are provided by the Sino-centric, the Tokugawa, and the Westphalian systems. As this study shows, the two East Asian systems were in several respects better adapted than the Westphalian to the realities of international politics in the twenty-first century.

scholarly journals Was Duplessis Right?

2011 ◽  
Vol 55 (3) ◽  
pp. 401-436
Author(s):  
Roderick A. Macdonald
Keyword(s):  
Political Theory ◽  
Social Theory ◽  
Legal Theory ◽  
The State ◽  
Fiftieth Anniversary ◽  
The Other ◽  
Judicial Decision ◽  
The Law ◽  
Good And Evil

Given the inclination of legal scholars to progressively displace the meaning of a judicial decision from its context toward abstract propositions, it is no surprise that at its fiftieth anniversary, Roncarelli v. Duplessis has come to be interpreted in Manichean terms. The complex currents of postwar society and politics in Quebec are reduced to a simple story of good and evil in which evil is incarnated in Duplessis’s “persecution” of Roncarelli. In this paper the author argues for a more nuanced interpretation of the case. He suggests that the thirteen opinions delivered at trial and on appeal reflect several debates about society, the state and law that are as important now as half a century ago. The personal socio-demography of the judges authoring these opinions may have predisposed them to decide one way or the other; however, the majority and dissenting opinions also diverged (even if unconsciously) in their philosophical leanings in relation to social theory (internormative pluralism), political theory (communitarianism), and legal theory (pragmatic instrumentalism). Today, these dimensions can be seen to provide support for each of the positions argued by Duplessis’s counsel in Roncarelli given the state of the law in 1946.

scholarly journals Entre Ville et Montagne: L'Arbitrage Familiale dans le District de Grenoble

2004 ◽  
Vol 35 (2) ◽  
pp. 447
Author(s):  
Jerome Ferrand
Keyword(s):  
Dispute Resolution ◽  
Legal Profession ◽  
Conventional Form ◽  
The Law ◽  
The Revolution

Established by the law of 16-24 August 1790, the regional family tribunal of Grenoble used arbitration as the conventional form of dispute resolution. This article examines the role of the legal profession within family arbitration, while comparing the situation in Grenoble and in the surrounding mountains. This contrast illustrates the difficulties involved in the installation and operation of family tribunals in the first years of the Revolution. Nevertheless, the informal nature of family arbitration permitted the resolution of conflicts that would not otherwise have been resolved.

scholarly journals SEMANTICS OF VISUAL PERCEPTION VERBS IN THE ERZYA-MORDVIN AND FINNISH LANGUAGES

2021 ◽  
Vol 15 (1) ◽  
pp. 23-33
Author(s):  
Natalya Michailovna Mosina ◽  
Nina Valentinovna Kazaeva
Keyword(s):  
Visual Perception ◽  
Comparative Study ◽  
Sensory System ◽  
Point Of View ◽  
Leading Role ◽  
Perception Verbs ◽  
Verbal Group ◽  
The Comparative Study ◽  
Gustatory Perception

The subject of this paper is visual perception verbs in the Erzya-Mordvin and Finnish languages from the point of view of their semantic characteristics in comparison. Depending on the leading role of the sensory system, which, along with the visual system, plays a major role in perception, one distinguishes between auditory, tactile, olfactory and gustatory perception. This verbal group has a sensuous level of interrelations. Being verbs of perception, they are aimed at objects that have physical characteristics, whereas many of them are focused on the perception of concepts. In this regard, the verbs of perception develop a polysemy that goes in different directions. The novelty of the research lies in the comparative study of the lexical level of the Erzya-Mordvin and Finnish languages, which will allow us to tackle some theoretic aspects of Finno-Ugric linguistics in the future. The problem associated with the study of the semantics of perception verbs, or perceptual activity, is of relevance. Therefore, the purpose of this research is to describe the structure of the semantic field of verbs of one aspect of perception, namely the visual one: to determine the nuclear and peripheral verbal units using the material of the languages under study; to describe the system of meanings of verbal lexemes in the Erzya and Finnish languages, to analyze the polysemy of the studied verbal group in each of the above languages; to reveal additional semantic connotations in verbal lexemes; of particular interest is also the comparative study of the specifics of expression of the same semantic meaning in the context of far-related languages, in this case, Erzya and Finnish.

scholarly journals Glosa do postanowienia Sądu Najwyższego z dnia 23 marca 2016 r., sygn. akt: III CZP 112/15

2020 ◽  
Vol 26 ◽  
pp. 209-221
Author(s):  
Agata Kozioł
Keyword(s):  
Supreme Court ◽  
Legal Order ◽  
Applicable Law ◽  
The Law ◽  
Court Proceedings ◽  
Polish Law ◽  
Double Nature ◽  
Mandatory Provision

The role of art. 57 § 1 of Polish Family and Guardianship Code in proceedings concerning international divorce is disputed and gives rise to many questions concerning its nature. The provision, addressed to the Polish courts dealing with divorce cases, obliges the seized court to rule on fault of spouses in the breakdown of marriage. It may then seem to remain unclear if the court shall apply art. 57 § 1 when the law applicable to divorce does not state for fault based grounds for dissolution of marriage, while the legal order applicable to maintenance obligation between former spouses requires, among other prerequisites, that the fault of the former spouse obliged to alimony is declared in court proceedings. This paper analyses the judgement of Polish Supreme Court from 23rd of March 2016, in which this issue was raised. The Author rejects the opinion of Supreme Court that the provision in question has a procedural nature. The view, that it constitutes an example of overriding mandatory provision should also be denied. As a provision of double nature: material and procedural, it should be applied by Polish courts as an instrument that enables to rule on fault in all those cases when applicable law provides for fault grounds for divorce; it should be also applied by foreign court deciding on dissolution of marriage when Polish law is applicable.

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