European integration and legal culture: indirect sex discrimination in the French legal system

Legal Studies ◽  
1999 ◽  
Vol 19 (3) ◽  
pp. 397-414
Author(s):  
Chloe J Wallace
Keyword(s):  
Sex Discrimination ◽  
Legal Culture ◽  
Case Law ◽  
Formal Concept ◽  
Legal Certainty ◽  
Direct Discrimination ◽  
Indirect Discrimination ◽  
Ec Law

The purpose of this article is to examine whether legal culture has an influence on the implementation of EC law in member states by means of one case study; the failure of the French legal community to recognise and apply a prohibition against indirect as well as direct discrimination, which is well established in EC legislation and case law. It is suggested that legal cultural factors may have some role to play. The focus of French legal culture on the importance of legal certainty has contributed to an emphasis on a formal concept of equality within the law, to which the concept of indirect discrimination is not suited. The paradoxical role of the French judge, who is given very little power in theory and who is therefore able to take the inevitable policy decisions behind the cloak of judicial anonymity, means that she is able to avoid the obligation placed on her by EC law to implement a prohibition on indirect sex discrimination.

Part IV The Role of Arbitrators in the Development of Shipping Law, 16 The Role of Arbitrators and the Possibility of a Genuine Arbitral Case Law: The Continental Perspective

2016 ◽  
Author(s):  
Cachard Olivier
Keyword(s):  
Case Law ◽  
Public Interests ◽  
The Third ◽  
Private And Public ◽  
Maritime Disputes ◽  
Standard Terms ◽  
Legal Grounds

This chapter uses maritime arbitration in Paris as a case study to discuss the possibility of a genuine arbitral case law. This possibility derives from the arbitrator being uniquely placed, in view of his or her legal and methodological freedom, to conduct ‘the free objective search for a rule’. The first section underlines that an arbitrator or an arbitral panel is in the best position to carry out this free objective search for a rule. The second section investigates whether an arbitrator is just adjudicating a peculiar dispute or if, in doing so, his findings may reach further authority. It then discusses the legal grounds given to the award. The third section focuses further on the characteristics of maritime disputes and tries to sort out how a balance between private and public interests is met. It also examines how the market arbitrators consider standard terms.

9 SUMMARY This chapter has been concerned with introducing, in some depth, common law/ case law, the second major source of English legal rules discussed in this book. The role of the judiciary in the development of English law has become apparent as the chapter has progressed. This chapter has also indicated the central importance of a careful dissection of the law reports to ensure that the correct aspects of the case are correctly summarised for a case note and further use. Taken together with Chapter 3, the foundations of an indispensable ‘how to’ approach have been laid. It is now appropriate in the next chapter to place this foundation in its European context looking at the law relating to European human rights and fundamental freedoms and the law relating to the European Community. In Chapter 9, three sources of English law (legislation, case law and European Community law) are further developed by being brought together in a case study. 4.10 FURTHER READING As already mentioned in Chapter 3, if you are a law student the ground covered by this chapter will also be covered in English legal system courses and constitutional or public law courses. Coverage of reading cases can be found in the following excellent texts relating to both the theoretical and practical aspects of legal method. • Sychin, C, Legal Method, 1999, London: Sweet & Maxwell, Chapters 7 and 8. • Twining, W and Miers, D, How To Do Things With Rules, 4th edn, 1999, London: Butterworths, Chapters 7 and 8.

2012 ◽  
pp. 126-126
Keyword(s):  
European Community ◽  
Case Law ◽  
Legal Rules ◽  
Legal Method ◽  
English Law ◽  
The Law ◽  
Law Student ◽  
Law Reports

Discrimination and Free Movement in EC Law

1996 ◽  
Vol 45 (1) ◽  
pp. 82-108 ◽  
Author(s):  
Nicolas Bernard
Keyword(s):  
Free Movement ◽  
Democratic Legitimacy ◽  
The European Union ◽  
Rule Of Reason ◽  
Indirect Discrimination ◽  
Free Movement Of Goods ◽  
Ec Law ◽  
Community Legal Order ◽  
The Eu

Fundamental issues sometimes hide themselves behind what to an untrained eye might look like a technical and somewhat dry debate. Thus, a layman hearing Community lawyers' talk about the legal basis of legislation might be excused for not realising that the issue may be that of the role of the European Parliament in the European Union, and therefore the democratic legitimacy of the EU institutions. The debate about the function of the concept of discrimination in the law on the free movement of goods, services and persons in the Community is one of those discussions which has more to offer than meets the eye. What the debate is really about is the balance of powers between the member States and the Community and the federal nature of the Community legal order as well as, incidentally, the balance between market principles and other values embodied in legislation. Translated by specialists in the free movement of goods in the Community, it has become, in the context of Article 30 of the Treaty: should we read a “rule of reason” within Article 30, or can Cassis de Dijon be explained in terms of indirect discrimination?

scholarly journals Judicial Review of Democracy. Maintenance of Democracy as a Functionalist Mission in the Jurisprudence of the Constitutional Court of Kosovo

Südosteuropa ◽  
2020 ◽  
Vol 68 (4) ◽  
pp. 530-553
Author(s):  
Enver Hasani
Keyword(s):  
Legal Theory ◽  
Case Law ◽  
Point Of View ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Contractual Relationship ◽  
Constitutional Justice ◽  
Constitutional Jurisprudence

AbstractUsing Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.

scholarly journals Nacionalinio teismo vaidmuo įgyvendinant Europos Sąjungos teisę ir teisinio saugumo principo pažeidžiamumas

Teisė ◽  
2011 ◽  
Vol 78 ◽  
pp. 137-151
Author(s):  
Skirgailė Žaltauskaitė-Žalimienė
Keyword(s):  
National Court ◽  
Case Law ◽  
Eu Law ◽  
Legal Certainty ◽  
Res Judicata ◽  
The Eu

Straipsnyje analizuojamas nacionalinio teismo vaidmuo įgyvendinant Europos Sąjungos (ES) teisę, ypač atkreipiant dėmesį į Europos Sąjungos teisės viršenybės ir teisinio saugumo principų galimą koliziją bei jų suderinamumo problematiką, kuri straipsnyje atskleidžiama remiantis Europos Teisingumo Teismo (ETT) praktika. Nagrinėjamas ETT Lucchini sprendimas, šio sprendimo išvadų reikšmė res judicata prin­cipui jo ribojimo požiūriu. The article deals with the role of national court in implementation of the EU law. In particular, atten­tion is paid to the problem of possible collision and compatibility between the principles of supremacy of the EU law and legal certainty which is revealed relying on the ECJ case-law. The ECJ Lucchini judgment is also analysed as well as significance of its outcomes to the principle of res judicata in regard to the limitation of the latter.sp;

Rethinking Sex Equality as a Human Right

1994 ◽  
Vol 12 (3) ◽  
pp. 253-270
Author(s):  
Titia Loenen
Keyword(s):  
Case Law ◽  
State Courts ◽  
Human Right ◽  
Formal Approach ◽  
Division Of Powers ◽  
Sex Equality ◽  
Democratic State ◽  
Indirect Discrimination ◽  
Asymmetrical Model

This article critically examines the way the principle of sex equality is interpreted by several international, (quasi) judicial bodies. It argues that the current, mainly formal approach to equality and discrimination is in need of a fundamental reinterpretation towards a more substantive one, as formal equality often leads to the exclusion of those, like women, who do not fit the dominant models or standards. Though the role of the courts in striving for substantive legal equality is necessarily limited given the division of powers between the courts and the legislature in the democratic state, courts can contribute more than they currently do. In this respect it is held that the concept of indirect discrimination as developed in the case law of the ECJ provides openings for a more substantive approach to equality and discrimination and should be adopted by human rights courts as well. Further, the article argues for a new, asymmetrical model of equality analysis, based on the acknowledgement that the prohibition of discrimination is primarily directed at protecting historically ‘sensitive’ groups (like women), that is groups which have experienced or are still experiencing systemic forms of discrimination and disadvantage and not just isolated instances of disadvantageous treatment.

Challenges to the Effectiveness of the Protection against Indirect Discrimination on the Ground of Sex in Spain

2019 ◽  
pp. 262-278
Author(s):  
María Amparo Ballester Pastor
Keyword(s):  
Trade Unions ◽  
Critical Analysis ◽  
Sex Discrimination ◽  
Case Law ◽  
Quantitative Approach ◽  
Indirect Discrimination ◽  
Limited Application

Although Spain has formally transposed the EU’s gender anti-discrimination directives and case law, there are still problems of effectiveness, particularly in the area of indirect discrimination. This chapter presents a critical analysis of these problems, taking into account the historical and legislative situation of Spain. This chapter argues that the continuing problems concerning the limited application of indirect sex discrimination in Spain are due predominantly to its late and formalistic legislative implementation, the court’s reliance on a merely statistical and quantitative approach, as well as practical difficulties of various actors entitled to intervene or to bring legal actions against such discrimination (eg trade unions, trade inspectorates).

scholarly journals Wartości w teorii prawa Jerzego Wróblewskiego

2018 ◽  
Vol 2 (2) ◽  
pp. 258-272
Author(s):  
Jerzy Leszczyński
Keyword(s):  
Legal Theory ◽  
Legal Culture ◽  
Legal Positivism ◽  
Legal Interpretation ◽  
Legal Certainty ◽  
Evaluation Practices ◽  
The Law ◽  
Sophisticated Version

The article presents the role of values and evaluation practices in Jerzy Wróblewski`s legal theory. An overview of the theory includes here the interpretation and the application of the law, in both of which Wróblewski shows the axiological choices made by a lawyer. These choices are only partly limited by the interpretative directives, those generally accepted in a legal culture. The author of the article describes the two ideologies (normative theories), distinguished by Wroblewski, of the legal interpretation (and of the application of the law), which are contradictory to each other as they refer to opposing values: legal certainty and flexibility of law. A third type of ideology, identified by Wróblewski refers to the value of rationality and tries to mitigate the contradictions of the previous two. Some similarities between Wróblewski`s legal theory and the theory of H.L.A.Hart may allow to treat him as the co-founder of a sophisticated version of legal positivism.

scholarly journals The Role of Jurisprudence as Form of Legal Prescriptions: a Case Study of Notaries in Indonesia

2021 ◽  
Vol 17 ◽  
pp. 75-80
Author(s):  
Irfan Iryadi ◽  
Teuku Syahrul Ansari ◽  
Jumadil Saputra ◽  
Teuku Afrizal ◽  
Ahmad Syauqi Thirafi
Keyword(s):  
Primary Source ◽  
Qualitative Approach ◽  
Test Material ◽  
Legal Basis ◽  
Legal Certainty ◽  
Public Officials ◽  
Legal Concept ◽  
Positive Law

As a primary source of law, jurisprudence is a reference in constituting legal prescriptions for notaries in their works as public officials. Due to strengthening jurisprudence in the Indonesian legal system, jurisprudence cannot be ignored by the notary officeholders. Therefore, the main issue is whether jurisprudences have a role in constituting legal prescriptions for notaries in their works as public officials or not. This study was designed using a qualitative approach. Data analysis was conducted in a deductive-qualitative approach with a writing model carried out by "writing in contexts. The results showed that state law (laws) is the primary legal basis for doing authentic deeds by notaries. The implementation of the law must take precedence to achieve the goal of legal certainty in doing authentic deeds. As a result of strengthening the role of jurisprudence in Indonesia, notaries should also attend to the existence of jurisprudence. The purpose of enforcing jurisprudence by the notary is as an effort to (i) fill the legal avoidance, (ii) complete the applicable legal procedures, (iii) become a legal prescription for notaries, (iv) become a source of positive law, (v) keep abreast of legal developments in society, (vi) serve as test material for notaries and (vii) get a new legal construction that replaces the old legal concept. In conclusion, jurisprudence is one of the sources of law which must also be considered and paid attention to by notaries.

scholarly journals Should we take the 'disability' out of discrimination laws?: Students with challenging behaviour and the definition of disability

2017 ◽  
Vol 35 (2) ◽  
pp. 108-128
Author(s):  
Karen O'Connell
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Challenging Behaviour ◽  
School Students ◽  
Disability Discrimination ◽  
Equality Rights ◽  
Policy Measures ◽  
Definition Of

Disability discrimination law has been of limited benefit to people with atypical and challenging behaviour. The role that law might play in upholding the equality rights of people with challenging behaviour is potentially expanded by changing medical and scientific knowledge about such behaviour, which brings more people within the definition of 'disability' and the protective ambit of the law. Yet this protective promise has not translated into legal gains, with few successful equality law cases decided in Australian courts and tribunals. This article critically examines the role of law, particularly anti-discrimination law, in regulating (or protecting) divergent behaviour, using a case study of students with challenging behaviour in Australian schools. It considers the lack of successful discrimination law cases in the education context, and asks whether, given this seeming legislative failure, disability discrimination laws have anything left to offer school students in terms of protecting their equality rights. The article gives an overview of anti-discrimination complaints and cases brought by students with challenging behaviour. It includes interview data from State and federal anti-discrimination bodies, legal practitioners and disability activists to complement case law and other public reports of discrimination. Using this background data, the article considers whether current discrimination law models do enough to protect the rights of students with challenging behaviour to education and inclusion in public life or whether new legal and policy measures are needed. It specifically examines changes to the regulatory landscape, including the Convention on the Rights of Persons with Disability, and whether there are any real prospects for law reform.

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