The Right to Return: The Biblical Law of Theft

2010 ◽  
pp. 28-41 ◽  
Author(s):  
Eliakim Katz ◽  
Jacob Rosenberg
Keyword(s):  
Detailed Analysis ◽  
Economic Model ◽  
Jewish Law ◽  
Biblical Law ◽  
The Law ◽  
The Right

This article focuses on the law surrounding the biblical law of theft. According to Jewish Law, a thief who is caught and found guilty must return the stolen article and, in addition, pay the owner a fine equal to the value of the article. The thief can avoid this fine by admitting to the theft on his own initiative in a court and returning the stolen article to its owner. This article refers to such canceling of a fine as a pardon. The pardon is explained in the Talmud by the legal dictum “Mode BeKnass Patur,” that is “he who confesses in a fine is exempt”. This article carefully explains economic model with the help of various graphs. This article also explains two issues which require consideration in assessing whether Eliezer acted properly as an agent according to Jewish law. A detailed analysis of concepts of duty in Judaism concludes this article.

Economic Substance and The Laws of Interest: A Comparison of Jewish and U.S. Federal Tax Law

2010 ◽  
pp. 478-498
Author(s):  
Adam Chodorow
Keyword(s):  
Detailed Analysis ◽  
Legal System ◽  
Tax Law ◽  
Jewish Law ◽  
The Us ◽  
Tax Laws ◽  
Two Systems ◽  
Federal Taxation ◽  
The Law ◽  
Practical Constraints

Both Jewish law and U.S. Federal tax law define interest broadly as a payment for the use of money. Nonetheless, the two systems diverge widely when determining whether particular transactions involve interest. This article compares the different approaches to the laws of interest found in these two systems, in an effort to reveal how underlying goals, practical constraints, and the structure of the legal system affects the development of the law. This article explains the laws of interest. The Torah mentions ribbit three times. The first occurs in Exodus the second mention is found in Leviticus and the final occurs in Deuteronomy. Moving forward this article explains the federal taxation of interest which says that interest is not banned under the federal tax laws, but it is often treated differently from other types of payments. A detailed analysis comparing the Jewish and the US approaches to interest concludes this article.

A Science Like Any Other? Classical Legal Formalism in theHalakhicJurisprudence of Rabbis Isaac Jacob Reines and Moses Avigdor Amiel

2013 ◽  
Vol 28 (1) ◽  
pp. 179-224 ◽  
Author(s):  
Yosef Lindell
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Late Nineteenth Century ◽  
Jewish Law ◽  
Legal Formalism ◽  
The Law ◽  
Internal Coherence ◽  
The Right ◽  
The University ◽  
The Way

Nineteenth century jurists sought to make law a science like any other. They believed that the law was not an unprincipled mass of archaic and contradictory rules, nor an extinct body of Latin words that should be venerated in a church reliquary and seldom studied. Rather, they said that it was time for law to take its place in the university and to be dissected under the microscope of scientific analysis. It was by these methods that law's fundamental axioms would be uncovered—which would in turn explain the relationship of all its parts to the whole. And with the right set of principles, new data could be effortlessly incorporated into an ever-growing scientific taxonomy of the law.This mode of thinking dominated both European and American legal jurisprudence in the mid- to late-nineteenth century and the early twentieth century, although it went by different names. One fundamental thread ran throughout—the law was not unprincipled, but logical. It could be reasonably explained and rationally ordered. This paper demonstrates that Rabbis Isaac Jacob Reines and Moses Avigdor Amiel, two important Jewish thinkers living at the turn of the twentieth century, saw Jewish law, orhalakha, in the same light. Although Reines and Amiel may not have been directly influenced by secular jurisprudence, many of the elements of this classical legal science provide an interesting parallel to the answers these two thinkers gave to some of the oldest problems of Jewish law. Most notably, the way in which Reines and Amiel explained the connection between the Torah's oral and written components, as well as the way in which they asserted the internal coherence ofhalakhicjurisprudence, was similar to the legal formalism of their contemporaries.

Hetter Iska, the Permissible Venture: A Device to Avoid the Prohibition Against Interest-Bearing Loans

2010 ◽  
pp. 196-220 ◽  
Author(s):  
J. David Bleich
Keyword(s):  
Detailed Analysis ◽  
Economic Structure ◽  
Jewish Law ◽  
Biblical Law ◽  
Mortgage Loans

Biblical law forbids exaction of interest by a creditor and payment of interest by a debtor in loans between Jews. This article focuses on a device to avoid the prohibition against interest-bearing loans. Although in biblical days the economic structure of society was predominantly agrarian and loans were sought primarily for personal purposes, the strictures against usury apply with equal force to loans extended for commercial purposes. Since interest was not permitted, ways and means had to be found to facilitate commercial endeavors without violation of either the letter or the spirit of Jewish law. Keeping this in mind, the hetter iska was drafted. The hetter iska is a document that specifies the terms and conditions under which money is advanced by one individual to another. Its legal purpose is to create a partnership arrangement as distinct from a debtor creditor relationship. A detailed analysis of promissory and mortgage loans concludes this article.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

Preclusion of the Right to Submit New Facts and Evidence According to the Law on Contested Procedure in Kosovo

2017 ◽  
Vol 10 (1) ◽  
pp. 84
Author(s):  
ARTAN QERKINI
Keyword(s):  
Market Economy ◽  
Legal System ◽  
Practical Implementation ◽  
Relevant Evidence ◽  
Legal Provisions ◽  
The Law ◽  
Legislative Amendments ◽  
The Right

The market economy and changes within Republic of Kosovo’s legal system, which imposed the need of legal changes within the field of contested procedure also, have caused this procedure to become more efficient vis-à-vis legal provisions which were in force until October 6th 2008. Through the Law on Contested Procedure (hereinafter “LCP”), the legislator has aimed, inter alia, to make the contested procedure more concentrated, and thus, more efficient. In this regard, the Kosovar legislator has determined that it is mandatory for the parties to present any and all relevant evidence for resolving the dispute until the preparatory session, and in the event that one was not held, until the first main hearing session. As an exception, the parties may present relevant evidence even after this stage of proceedings, provided that their failure to present said evidence no later than at the preparatory session, respectively first main hearing session, was through no fault of their own. I consider that these legislative amendments are vital to ensuring practical implementation of the principle of efficience in the contested procedure.

Eksistensi Penanaman Investasi Asing di Indonesia dan Hak Menguasai Negara Berdasarkan Pasal 33 UUD NRI Tahun 1945

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji
Keyword(s):  
Water Resource ◽  
Public Service ◽  
Foreign Investment ◽  
Public Interest ◽  
Oil And Gas ◽  
Unfair Competition ◽  
Foreign Investor ◽  
Foreign Companies ◽  
The Law ◽  
The Right

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945

Protecting the Desperate: The Regulation of Payday Lending

2015 ◽  
Vol 43 (1) ◽  
pp. 147-176
Author(s):  
Andrew J Serpell
Keyword(s):  
Consumer Credit ◽  
Law Reform ◽  
Payday Lending ◽  
Short Term ◽  
Payday Loans ◽  
The Law ◽  
The Right ◽  
Credit Contracts ◽  
The Cost

Payday loans are small-amount, short-term, unsecured, high-cost credit contracts provided by non-mainstream credit providers. Payday loans are usually taken out to help the consumer pay for essential items, such as food, rent, electricity, petrol, broken-down appliances or car registration or repairs. These consumers take out payday loans because they cannot — or believe that they cannot — obtain a loan from a mainstream credit provider such as a bank. In recent years there has been a protracted debate in Australia — and in several overseas jurisdictions — about how to regulate the industry. Recent amendments to the National Consumer Credit Protection Act 2009 (Cth) — referred to in this article as the 2013 reforms — are designed to better protect payday loan consumers. While the 2013 reforms provide substantially improved protection for payday loan consumers, further changes to the law may be warranted. This article raises several law reform issues which should be considered as part of the 2015 review into small amount credit contracts, including whether the caps on the cost of credit are set at the right level, whether the required content and presentation of the consumer warnings needs to be altered, whether more needs to be done to protect consumers who are particularly disadvantaged or vulnerable and whether a general anti-avoidance provision should be included in the credit legislation.

The Laws of Hammurabi

2020 ◽  
Author(s):  
Pamela Barmash
Keyword(s):  
Eighteenth Century ◽  
Roman Law ◽  
Intellectual Culture ◽  
Biblical Law ◽  
Intellectual Tradition ◽  
Legal Principles ◽  
Copernican Revolution ◽  
The Subject ◽  
The Law

The Laws of Hammurabi is one of the earliest law codes, dating from the eighteenth century BCE Mesopotamia (ancient Iraq). It is the culmination of a tradition in which scribes would demonstrate their legal flair by composing statutes on a repertoire of traditional cases, articulating what they deemed just and fair. The book describes how the scribe of the Laws of Hammurabi advanced beyond earlier scribes in composing statutes that manifest systematization and implicit legal principles. The scribe inserted the statutes into the structure of a royal inscription, skillfully reshaping the genre. This approach allowed the king to use the law code to demonstrate that Hammurabi had fulfilled the mandate to guarantee justice enjoined upon him by the gods, affirming his authority as king. This tradition of scribal improvisation on a set of traditional cases continued outside of Mesopotamia, influencing biblical law and the law of the Hittite Empire and perhaps shaping Greek and Roman law. The Laws of Hammurabi is also a witness to the start of another stream of intellectual tradition. It became a classic text and the subject of formal commentaries, marking a Copernican revolution in intellectual culture.

Punishment

2018 ◽  
Author(s):  
Mark McClish
Keyword(s):  
Legal System ◽  
State Violence ◽  
The Law ◽  
The Right

In Indic thought, the daṇḍa (“staff”) represented the king’s use of violence for the purpose of governance. His right and obligation as daṇḍadhara (“wielder of the staff”) to punish those deemed deserving of punishment under the law defined the king’s role in the legal system. In this sense, daṇḍa represented the legalization of domination, in which state violence was reckoned as just punishment. But the king was not the only one with a recognized right to punish. This chapter explores how daṇḍa was used to articulate and legitimize relations of domination within the legal imagination of Dharmaśāstra. It asks, in particular, who is conferred the right to punish and how much?

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

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