Fātiḥa Marriage in Morocco

Hawwa ◽  
2020 ◽  
pp. 10-33
Author(s):  
Miyase Yavuz-Altıntaş
Keyword(s):  
Legal System ◽  
Social Reality ◽  
Religious Practices ◽  
Court Cases ◽  
Force Majeure ◽  
National Legal System ◽  
Advisory Commission

Abstract This paper investigates the debates over, and the promulgation of, the new Moroccan laws on unregistered customary marriages and on establishing the paternity of offspring resulting from such marriages, and it analyzes how those laws have been implemented by the judiciary. The paper closely examines the relevant deliberations of the Moroccan Royal Advisory Commission, and analyzes 24 court cases involving the laws. I argue that, while monogamous registered marriage is depicted in the national legal system as the basis for establishing a modern Moroccan society, legislators regard fātiḥa marriage as a social reality that has its roots in customs and religious practices. The paper shows that judges abide by the conditions specified in law but differ in their interpretation of “force majeure” when it comes to a couple’s having not registered their marriage. The study also reveals how the laws create legal loopholes in terms of underage marriage and polygyny, which are strictly restricted in the code.

scholarly journals The Legal Nature of Force-Majeure

2021 ◽  
Vol 07 (11) ◽  
Author(s):  
Kholmurod Ruzievich Isanov ◽  
Keyword(s):  
Legal System ◽  
Use Of Force ◽  
Legal Systems ◽  
Legal Relationship ◽  
Force Majeure ◽  
Legal Nature ◽  
National Legal System ◽  
The Will ◽  
Legal Consequences

This article analyzes the legal nature of the force majeure in the system of legal relations. The will of the parties to a force majeure legal relationship, as a sudden or unavoidable event or situation involving their will, affects the rights and obligations between them and has certain legal consequences, the whole system of legal relations has also been examined as the basis for exemption from liability or exclusion of liability. Approaches have also been explored in distinguishing a situation that led to harm as a risk (risk) or force majeure situation in determining liability for breach of obligation. The conditions for the use of force majeure in the continental and general legal systems are analyzed, and scientific conclusions are drawn on its legal nature and its role in the national legal system.

scholarly journals From Norms to Facts: The Realization of Rights in Common and Civil Private Law

2011 ◽  
Vol 56 (1) ◽  
pp. 77-114 ◽  
Author(s):  
Helge Dedek
Keyword(s):  
Legal System ◽  
Deep Structure ◽  
Common Law ◽  
Social Reality ◽  
Judicial Decision Making ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Common ◽  
Legal Concepts ◽  
The Ideal

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world—particularly in the United Kingdom and the Commonwealth—a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar—used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution—the concept of remedy remains a mystery. The lack of “remedy” in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

Is the Infringement of a Treaty a Fault?

2020 ◽  
Vol 11 (1) ◽  
pp. 37-56
Author(s):  
Françoise Auvray
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Legal Order ◽  
International Treaties ◽  
Public Authorities ◽  
International Treaty ◽  
National Legal System ◽  
Tort System ◽  
State Liability

AbstractThis contribution deals with the wrongful behaviour of public authorities, in this case in particular the Belgian State, and delves into a challenge that the multi-levelled legal order poses for the national tort system. It inquires how the violation of an international treaty relates to liability in the national legal system. More specifically, the author examines if it is necessary, when dealing with state liability, to limit the concept of fault to the infringements of international treaties with direct effect, excluding the violation of those without such effect.

scholarly journals Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom

Laws ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 12
Author(s):  
Paul Baumgardner
Keyword(s):  
United States ◽  
Supreme Court ◽  
Legal System ◽  
Religious Freedom ◽  
The United States ◽  
Religious Practices ◽  
The Past ◽  
The U.S

When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.

MENATA IUS CONSTITUTUM MENUJU SATU SISTEM HUKUM NASIONAL

Veritas ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 235-255
Author(s):  
Rachmat Trijono
Keyword(s):  
Legal System ◽  
Qualitative Method ◽  
National Legal System ◽  
Scientific Papers ◽  
Descriptive Approach

Criticism of the ius constitutum of Indonesia which is still not organized according to the appropriate grading and grundnorm has resulted in a reconstruction of the arrangement of the ius constitutum. The purpose of this paper is to reconstruct the arrangement of the constitutum ius which is spread in various scientific papers by the author. The method used is a qualitative method with a descriptive approach. The conclusion was that efforts had been made to rearrange the ius constitutum, however, if it was not carried out in a focused and thorough manner, there would not be a single national legal system that was unique and suited to the Indonesian situation. The necessity of realizing a national legal system is not just a dream.

scholarly journals “University Law Clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences”

2014 ◽  
Vol 12 ◽  
pp. 105 ◽  
Author(s):  
Liz Curran
Keyword(s):  
Legal System ◽  
Work Experience ◽  
Policy Development ◽  
Clinical Work ◽  
Law Reform ◽  
Public Confidence ◽  
Court Cases ◽  
Clinical Program ◽  
Case Work ◽  
The Law

<p>This article examines how a clinical program can enlarge on the benefits of case work experience of enabling students by adding a course component which engages the students in identifying systemic issues in their case work which can be used to inform work on law reform issues as part of assessment in the clinical programs. The clinical program discussed in this article, demonstrates that assessment can be broadened to enable students to critique the contexts within which client issues emerge. The added component to student case work requires students to develop and use further skills in research, analysis and the evaluation of issues emerging from case work and suggest considered solutions to improve the operation of the legal system. My experience of such an approach is that it deepens students understanding not just of the law and how it is applied to their case work but also the mechanics of the law, how laws are made and how they are influenced. Student lawyers also see the important role of lawyers as members of a profession in ensuring the legal system retains public confidence. A side effect of this extension of the clinical work beyond only client work, is that students become motivated and are more employable (as they leave the course not only with skills in interviewing, communicating, letter writing, applying the law and preparing court cases) with skills in policy development and submission writing.</p>

scholarly journals Formation of Indonesia's National Law System

2020 ◽  
Vol 7 (2) ◽  
pp. 85-90
Author(s):  
Ramadhani Puji Astutik ◽  
Anita Trisiana
Keyword(s):  
National Identity ◽  
Legal System ◽  
Secondary Data ◽  
The State ◽  
National Goal ◽  
Law System ◽  
Legal Development ◽  
Normative Approach ◽  
Material Sources ◽  
National Legal System

The formation of Indonesia's national legal system cannot be separated from the politics of law, because it is used as a guide in the process of making and enforcing the law to achieve a dream and national goal. The formation of the legal system in Indonesia has not gone well, Indonesia should have its own law. By having its own law, Indonesia will have national identity and will be seen as advanced by other countries. The formation of the national legal system in Indonesia is heavily influenced by external elements. It should maintain all the material sources of law that already exist in Indonesia. The objective of this study is to describe the formation of the national legal system in the State of Indonesia. This study uses a normative approach by using secondary data from library materials. The results of this study indicate that the formation of a national legal system is a process of developing a legal system and along with its element. With the development of the national legal system, it must be able to replace the Dutch colonial legal products with its own legal products. The development of the national legal system is a way to make changes in Indonesian legal products that must be in accordance with the values that are in people's lives. In the process of legal development, it is impossible to be separated from a legal politics.  

scholarly journals Pancasila sebagai Sumber Hukum dalam Sistem Hukum Nasional

2018 ◽  
Vol 15 (1) ◽  
pp. 21
Author(s):  
Fais Yonas Bo’a
Keyword(s):  
Legal System ◽  
House Of Representatives ◽  
Legal Pluralism ◽  
New Order ◽  
The Reformation ◽  
National Legal System ◽  
The Status ◽  
The Republic ◽  
Binding Power ◽  
Laws And Regulations

Pancasila sebagai sumber segala sumber hukum sudah mendapatkan legitimasi secara yuridis melalui TAP MPR Nomor XX/MPRS/1966 tentang Memorandum DPR-GR Mengenai Sumber Tertib Hukum Republik Indonesia dan Tata Urutan Peraturan Perundang Republik Indonesia. Setelah reformasi, keberadaan Pancasila tersebut kembali dikukuhkan dalam Undang-Undang Nomor 10 Tahun 2004 yang kemudian diganti dengan Undang-Undang Nomor 12 Tahun 2011 tentang Peraturan Perundang-Undangan. Pancasila sebagai sumber segala sumber hukum memberi makna bahwa sistem hukum nasional wajib berlandaskan Pancasila. Akan tetapi, keberadaan Pancasila tersebut semakin tergerus dalam sistem hukum nasional. Hal demikian dilatarbelakangi oleh tiga alasan yaitu: pertama, adanya sikap resistensi terhadap Orde Baru yang memanfaatkan Pancasila demi kelanggengan kekuasaan yang bersifat otoriter. Kedua, menguatnya pluralisme hukum yang mengakibatkan terjadinya kontradiksi-kontradiksi atau disharmonisasi hukum. Ketiga, status Pancasila tersebut hanya dijadikan simbol dalam hukum. Untuk itu, perlu dilakukan upaya-upaya untuk menerapkan Pancasila sebagai sumber segala sumber hukum dalam sistem hukum nasional yaitu: pertama, menjadikan Pancasila sebagai suatu aliran hukum agar tidak terjadi lagi disharmonisasi hukum akibat diterapkannya pluralisme hukum. Kedua, mendudukkan Pancasila sebagai puncak peraturan perundang-undangan agar Pancasila memiliki daya mengikat terhadap segala jenis peraturan perundang-undangan sehingga tidak melanggar asas lex superiori derogat legi inferiori.Pancasila as the source of all sources of law has obtained legitimacy legally through the Decree of the People’s Consultative Assembly Number XX / MPRS / 1966 on the Memorandum of the House of Representatives-Gotong Royong Regarding the Sources of Law and the Order of the Republic of Indonesia. After the reformation, the existence of Pancasila was re-confirmed in Law Number 10 Year 2004 which was subsequently replaced by Law Number 12 Year 2011 on Legislation Regulation. Pancasila as the source of all sources of law gives meaning that the national legal system must be based on Pancasila. However, now the existence of Pancasila is increasingly eroded in the national legal system. This is motivated by three reasons: first, the existence of resistance to the New Order that utilizes Pancasila for the sake of perpetuity of authoritarian power. Second, the strengthening of legal pluralism that resulted in legal contradictions or disharmony. Third, the status of Pancasila is only used as a symbol in law. Therefore, efforts should be made to implement Pancasila as the source of all sources of law in the national legal system: first, make Pancasila as a flow of law in order to avoid legal disharmonization due to the application of legal pluralism. Secondly, Pretend Pancasila as the top of legislation so that Pancasila have binding power against all kinds of laws and regulations so that it does not violate the principle of lex superiori derogat legi inferiori.

Sign in / Sign up

Export Citation Format

Share Document