Secured transactions and patterns of legal change: the contribution of comparative law

2020 ◽  
Author(s):  
Francesca Fiorentini
Keyword(s):  
Comparative Law ◽  
Legal Change ◽  
Positive Law ◽  
Secured Transactions ◽  
The Many ◽  
Law Making

Abstract The article analyses the many actors and initiatives that, in the last decades, have pursued the goal of worldwide harmonization of secured transaction laws, scrutinizing the achievements and the limits of these experiments. In light of such results, the article also outlines the methodological contribution that comparative law can offer to legal change in the sector of secured transactions law, by way of confronting positive law models with meta-legal elements such as culture, society, economy, law-making processes, and geopolitics.

scholarly journals Externalizing Migration Management through Soft Law: The Case of the Memorandum of Understanding between Libya and Italy

Global Jurist ◽  
2019 ◽  
Vol 20 (1) ◽  
Author(s):  
Martino Reviglio
Keyword(s):  
European Union ◽  
International Migration ◽  
Critical Discussion ◽  
International Organization ◽  
Soft Law ◽  
Illustrative Case ◽  
The European Union ◽  
Migration Management ◽  
The Many ◽  
Law Making

Abstract The externalization of migration management to third countries is becoming a recurrent phenomenon in international migration management. Soft law instruments emerged as an important strategy to externalize migration management to third countries through international migration agreements. In particular, in the last years the European Union and some member states have adopted bilateral and multilateral migration agreements in order to diminish the arrival of migrants in Europe. These agreements in the form of soft law instruments are problematic because do not follow the ordinary process of law making and thus it is difficult to assess their legal effectivity. The memorandum of understanding signed in February 2017 between Libya and Italy represents an illustrative case of the process of externalizing migration management through soft law. From a critical discussion of the memorandum, many problems in relation to its legal and material validity follow. In particular, the protection of migrants’ human rights in Libya is not guaranteed as the many international organization and NGOs reports indicate.

scholarly journals PUNISHMENT FOR THE EXTRAORDINARY CRIME PERPETRATOR ON CHILDREN ECONOMIC EXPLOITATION IN INDONESIA COMPARISON OF LAW IN AUSTRALIA, SENEGAL AND ENGLAND

2019 ◽  
Vol 7 (3) ◽  
pp. 97-101
Author(s):  
Aristya Windiana Pamuncak
Keyword(s):  
Psychological Health ◽  
Public Perception ◽  
Comparative Law ◽  
The State ◽  
Positive Law ◽  
Economic Exploitation ◽  
The World ◽  
The Future ◽  
Study Child ◽  
Physical And Psychological Health

Purpose of Study: Child exploitation and slavery have become a new phenomenon of global crime because it occurred in every part of the world. The exploitation of infants and children in our public perception is underestimated because of cases subject to prosecution only mild and included unusual punishment. Methodology: This research was normative, in analyzing phenomena that occur in society, the authors attempted to answer some of the problems of the rule of positive law in Indonesia in solving the problems of exploitation of children, how to tackle the exploitation of children by other countries, and recommendations to resolve the problems of exploitation against children. Results: Exploitation crimes against children or slavery more appropriately included as an extraordinary crime committed against children, because such measures will not only affect the physical and psychological health but also will greatly affect the future of children and the future of a nation. Implications/Applications: Comparative law between the State of Australia, Senegal, and England, can be recommended for the legislature to make the formulation of regulations on the handling of the exploitation of children more effectively and quickly.

The Science of Comparative Law

1939 ◽  
Vol 7 (1) ◽  
pp. 94-110 ◽  
Author(s):  
M. Schmitthoff
Keyword(s):  
Comparative Method ◽  
Comparative Law ◽  
The Other ◽  
Definite Function ◽  
Special Study ◽  
Legal Systems ◽  
Legal Problem ◽  
Positive Law ◽  
Legal Science ◽  
The Law

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

Law Making

2019 ◽  
pp. 206-238
Author(s):  
John Baker
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Symbiotic Relationship ◽  
Legal Change ◽  
Inns Of Court ◽  
History Of ◽  
The Common ◽  
Common Learning ◽  
Law Making

This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.

Formants and Institutions: Intellectual Meeting Points between Rodolfo Sacco and Douglass North

Global Jurist ◽  
2011 ◽  
Vol 11 (2) ◽  
Author(s):  
Irene Biglino
Keyword(s):  
Institutional Economics ◽  
Comparative Law ◽  
Legal Consciousness ◽  
Methodological Pluralism ◽  
Legal Change ◽  
Economic Discourse ◽  
Distinctive Features ◽  
Convergence And Divergence ◽  
The One ◽  
Douglass North

In the present paper, I attempt to unearth what I believe to be an extremely valuable, implicit dialogue between legal and economic discourse through an analysis of the contributions by two leading figures in the fields of comparative law and institutional economics, respectively: Rodolfo Sacco and Douglass North. By closely comparing two apparently far removed intellectual trajectories, I will sketch the manner in which the two scholars come to terms with the concept of change in their respective disciplines. How is legal change, on the one hand, and economic change, on the other hand, explained? I will examine how North addresses the question “why do economies perform differently through space and time?” and review Sacco’s inquires upon convergence and divergence in legal systems with different institutional premises. Once the distinctive features of the two theses have been outlined against the backdrop of the latter questions, I will identify intellectual meeting points, common threads, and parallel tracks drawing the scholars together. In the spirit of methodological pluralism, I will conclude by suggesting that a combined reading of the theses under scrutiny may provide a practical template for thinking about questions of legal change, legal transplants, and the diffusion of legal consciousness.

TERMINOLOŠKO I POJMOVNO ODREĐENjE BANKE KAO SUBJEKTA USLUŽNOG PRAVA

2021 ◽  
Author(s):  
Miroslav Milosavljević ◽  
◽  
Isidora Milošević ◽  
Jelena Milosavljevic ◽  
◽  
...  
Keyword(s):  
German Law ◽  
Comparative Law ◽  
Common Denominator ◽  
Positive Law ◽  
Economic Entity ◽  
Conceptual Definition ◽  
The Republic ◽  
Definition Of ◽  
The Eu

In order to determine the essence of the bank, as an economic entity, the authors first determined its definition, both terminologically and conceptually. Furthermore, the theoretical and lexicographic definition of the bank is analyzed, as well as the definitions given in the positive law of the Republic of Serbia and in comparative law, primarily in the states that emerged from the former republics of SFRY, and then in English and German law, as well as the EU. The authors came to the conclusion that there is a common denominator for all analyzed definitions on the basis of which the terminological and conceptual definition of a bank is precisely determined.

A Cosmopolitan Jurisprudence

2021 ◽  
Keyword(s):  
Intellectual History ◽  
Legal History ◽  
Comparative Law ◽  
Positive Law ◽  
The Face ◽  
History Of ◽  
Mcgill University ◽  
Global Discourse ◽  
Complex Phenomena ◽  
Legal Sociology

H. Patrick Glenn (1940–2014), Professor of Law and former Director of the Institute of Comparative Law at McGill University, was a key figure in the global discourse on comparative law. This collection is intended to honor Professor Glenn's intellectual legacy by engaging critically with his ideas, especially focusing on his visions of a 'cosmopolitan state' and of law conceptualized as 'tradition'. The book explores the intellectual history of comparative law as a discipline, its attempts to push the objects of its study beyond the positive law of the nation-state, and both its potential and the challenges it must confront in the face of the complex phenomena of globalization and the internationalization of law. An international group of leading scholars in comparative law, legal philosophy, legal sociology, and legal history takes stock of the field of comparative law and where it is headed.

scholarly journals Comparative Law and Human Rights

2019 ◽  
pp. 1221-1249 ◽  
Author(s):  
Samantha Besson
Keyword(s):  
Human Rights ◽  
International Law ◽  
Quantitative Methods ◽  
Comparative Law ◽  
Consensus Method ◽  
Human Rights Law ◽  
Universal Human Rights ◽  
Law Making

This chapter discusses the boundaries, the authority, and the methods of comparative human rights law (CHRL). It first explains what comparing human rights means and how it developed historically, along with some distinctions between subfields of CHRL, before considering the transnational consensus method, how it works, and how it relates to some of the general methods of comparative law. It goes on to examine the authority of and the justifications for the authority of CHRL, the democratic objection to the legitimacy of CHRL, and selected issues in CHRL. In particular, it analyzes three potential solutions to the problem of securing the universal scope of CHRL: the turn to quantitative methods in CHRL, the development of (trans-)regional human rights comparison, and generalizing CHRL to all universal human rights treaty bodies. In conclusion, the chapter argues that, unlike other areas of domestic and even international law, human rights law amounts to a necessarily comparative project, i.e. a law-making enterprise in which comparative law is not only interesting, but is required and in which it should not only amount to a piecemeal and retail practice, but to a systematic and universal one.

scholarly journals Takzir as a Punishment in Islamic Criminal Law (Study of the Establishment of Punishment in Criminal Acts in Qanun)

2019 ◽  
Vol 1 (2) ◽  
pp. 100-108
Author(s):  
Usammah
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal System ◽  
Social Life ◽  
State Power ◽  
Public Law ◽  
Nation State ◽  
Positive Law ◽  
Western Law ◽  
Law Making

Formalizing the Shari'a of Islam both in the realm of social and social life, in the state and nation are not infrequently debated, both socio-political and religious debates. The debate is in addition to understanding the teachings of religion and its relationship with the nation-state, as well as understanding the existing legal system within the country, especially that the country embraces a positive legal system that is more influenced by western law. The notion of enforcement of Islamic criminal law can not necessarily be carried out properly without any legislation and the establishment of a material Islamic criminal law as a positive law in force. Also, Islamic criminal law is a public law requiring state power both in law making and in law enforcement. In relation to the legislation and the formation of the law (qanun syariat Islam), the most interesting thing is how to determine the shape of the finger and its uqubat both belonging to the category of hudud, qisas and takzir as part of the Islamic Shari'a law enforcement system

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