The specificity of extensive and restrictive interpretations of the law

2016 ◽  
Vol 4 (3) ◽  
pp. 13-17
Author(s):  
Евгений Тихонравов ◽  
Evgeniy Tikhonravov
Keyword(s):  
Legal Rule ◽  
Legal Norms ◽  
Legal Rules ◽  
The Law

Some scholars maintain that all legal rules are subject to extensive and restrictive interpretation. Others argue that certain kinds of legal norms cannot be construed in this way. The author attempts to resolve this contradiction. The findings suggest a rule for determining when extensive or restrictive interpretation of a particular legal rule is acceptable.

The normative role of the economic legal rule and the results of its application to the investment law in the Kurdistan region

2021 ◽  
Author(s):  
Tahseen Hamah Saeed
Keyword(s):  
Law And Economics ◽  
Legal Rule ◽  
Kurdistan Region ◽  
Anglo Saxon ◽  
Legal Rules ◽  
Transnational Companies ◽  
Investment Law ◽  
The Law ◽  
Modern Era

The reciprocal treatment between law and economics has become a fact in the real world. And that the influence and influence between them reached the point of putting the independence of each under question. The central role that the economy plays in the modern era, especially after the emergence of the phenomenon of globalization and the spread of transnational companies and the dominance of the liberal and capitalist intellectual current, caused the emergence of a special type of law and legal rules called economic legal rules that have characteristics that distinguish them from other legal rules. This is due to the special nature of the economy of change. Fast and complex. And it came to the point that some scholars claimed that the economy has become in the center and that the law lacks its independence and has no function but to regulate the affairs of the economy so that the latter performs its original and important function in modern societies. Although the opinion regarding the relativity of this independence differs among the jurists of the Latin school from the Anglo-Saxon school. The jurists of the Latin school in general recognize more independence of the law, while the Anglo-Saxon jurists go to the more influence of the economy on the law than the effect of the law on the economy. Especially in developing countries in need of development and development. That is why the researcher tries to apply the result of the structural role of the economic legal base on one of the economic laws in the afflicted Kurdistan region, which needs the most what it needs is change and development in both areas of law and economy. Especially with regard to investing and working with internal capital and attracting foreign investors, in order to remove some injustice from the oppressed people at a time when the reality was finally fair and gave them the opportunity to have their legitimate authority and enjoy the opportunity to rise and move to reach the level of progress of the world in the modern era and keep pace with what its brothers have reached in humanity from other peoples.

scholarly journals Islamic Law from the Internal Point of View

2021 ◽  
Vol 2 (1) ◽  
Author(s):  
Haider A. Hamoudi
Keyword(s):  
Islamic Law ◽  
Legal Rule ◽  
Point Of View ◽  
Internal Point ◽  
Legal Rules ◽  
Internal View ◽  
Historical Method ◽  
Making Sense ◽  
Points Of View ◽  
The Law

Haider Hamoudi notes the different perspectives lawyers and historians employ in making sense of the law. Invoking H.L.A. Hart’s famous distinction between “internal” and “external” points of view with respect to law and legal rules, Hamoudi describes lawyers as primarily adopting the former, and historians, the latter point of view. This is not to suggest that lawyers do not take history into consideration, but rather to mean that when they do, their focus is results oriented in that they use history to understand the ultimate endpoint, the contemporaneous meaning of a legal rule or institution. Hamoudi observes two consequences emanating from lawyers’ adoption of the internal view that puts lawyers somewhat at odds with the demands of historical method and meaning. While deliberately omitting discussion on the normative desirability of either method, Hamoudi concludes by observing value in merely pointing out the differences between the internal and external viewpoints of law and history, respectively, to help expose “our own biases and assumptions.”

scholarly journals RECHTSVINDING METHOD OF JUDGES IN FILLING LEGAL EMPTY "STUDY OF APPROACHES IN LEGAL DISCOVERY"

2019 ◽  
Vol 11 (2) ◽  
pp. 135-152
Author(s):  
Apipuddin Apipuddin
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Legal Norms ◽  
Legal Rules ◽  
Procedural Law ◽  
The World ◽  
Characteristic Views ◽  
The Law ◽  
Legal Discovery

One of the important stages in the world of justice is the stage of legal discovery by judges to resolve cases that are being disputed. Many new cases emerge and escape from existing legal rules resulting in a legal vacuum, while judges must not refuse to examine, try and decide on cases that come to them on the grounds of lack of law or unclear regulation. Judges are required to find the law in resolving disputes. On the other hand, the implementation of procedural law shows a formalistic, positivistic, and textualist image, and the condition is assumed to be a part that contributes to the method of legal discovery by judges and the quality of decisions produced. In a pluralistic state of law such as in Indonesia, of course, the legal discovery of justice must be based on the perspective and method of studying legal science. The study must not stop let alone rely only on the perspective of positive legal ansicht. It is important for judges to accommodate perspectives, approaches, theories, rules, and other legal norms such as Islamic Law with the Istinbath Al-Ahkam method and Customary Law with their very varied and characteristic views on the law. The comprehensive review is expected to have an impact on the inclusiveness of judges in harmonizing all approaches and legal systems that apply in their decisions and does not consider the position of the text of the legislation to be final and free from penetration of the interpretation of reason that develops in accordance with the behavior of the community, which is very dynamic.

scholarly journals Akibat Hukum Berlakunya Perma Nomor 02 Tahun 2012 Tentang Penyesuaian Batasan Tindak Pidana Pencurian Ringan Dan Jumlah Denda Dalam KUHP

2021 ◽  
Vol 4 (2) ◽  
pp. 998-1007
Author(s):  
Hasiholan Naibaho ◽  
Isnaini Isnaini ◽  
Marlina Marlina
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Police Officers ◽  
Criminal Policy ◽  
Criminal Code ◽  
Criminal Cases ◽  
Community Culture ◽  
Legal Norms ◽  
Legal Rules ◽  
The Law

By issuing Supreme Court Regulation Number 2 of 2012 concerning Limits of Minor Crimes and the Amount of Fines in the Criminal Code in order to resolve minor crimes. After the issuance of the PERMA, a new problem arose because the PERMA was not used in the settlement of minor criminal cases. This causes legal uncertainty after the issuance of PERMA No. 2 of 2012. This thesis uses normative legal research, namely research that refers to legal norms contained in laws and regulations that apply as a normative footing. The legal rules limiting minor crimes and the amount of fines in the Criminal Code with the issuance of Supreme Court Regulation Number 02 of 2012 namely: Legal Position Supreme Court Regulation Number 2 of 2012 substantially relates to adjustments to the limits of minor crimes and the amount of fines. The implementation of the law against the crime of minor theft after the issuance of the Supreme Court Regulation Number 02 of 2012 concerning minor crimes is as follows: The existence of Perma No. 2 of 2012 is a Criminal Policy and so far criminal policy is understood as the domain of the Criminal Justice System (SPP) which implements the representation of the state. In addition, criminal policy is also better understood as a way to enforce the law in the context of crime prevention. Constraints faced by law enforcement officers of the Police. Constraints in law enforcement occur when there is a discrepancy between value pairs and this discrepancy can be caused by: understanding of the police regarding the regulation, the courage of the police officers without overlapping, socialization of the regulation and shaping community culture

scholarly journals Trumping International Law?

2020 ◽  
Vol 21 (3) ◽  
pp. 275-297
Author(s):  
Andrea Birdsall ◽  
Rebecca Sanders
Keyword(s):  
International Law ◽  
Political Opposition ◽  
Legal Norms ◽  
Legal Rules ◽  
The Law ◽  
Legal Constraints

Abstract From bringing back waterboarding, to violating treaty obligations, to banning Muslims, Donald J. Trump has proposed numerous extralegal policies. We examine the implications of this disdain for legality, arguing that Trump's frequent hostility and indifference to legal rules and institutions paradoxically impede his capacity to enact his promises and damage international law. To situate Trump's legal politics, we draw comparisons with the Bush and Obama administrations. As constructivists note, the vitality of legal norms is dependent not just on one state's actions, but crucially on others’ reactions. While Trump has gone beyond his predecessors in rhetorically attacking international law, the backlash he generates limits the realization of his agenda in part due to his failure to convince others to violate the law or revise legal rules in novel ways. When the administration does reluctantly pursue legal justifications for controversial policies, it is better able to overcome legal constraints and political opposition.

scholarly journals Two centuries of the Austrian Civil code (1811-2011)

2011 ◽  
pp. 313-327
Author(s):  
Dusan Nikolic
Keyword(s):  
Civil Code ◽  
Legal Regulations ◽  
Legal Norms ◽  
Legal Rules ◽  
Positive Law ◽  
Legal Literature ◽  
Number Of Factors ◽  
Public Debates ◽  
The Law ◽  
Autonomous Province

Austrian civil code (Allgemeines b?rgerliches Gesetzbuch - ABGB, ACC) succeeded in resisting the challenges of time for two centuries. A number of factors influenced it's longevity. First of all, prior to adoption of the law, a long lasting and well designed work, which has been described in greater detail in this article, was done. The Code was written gradually, with lots of recalculations, checks and public debates. In legal literature, it is often written about a unique lawmaking experiment, which Austrian authorities made by implementing the Code in one part of the state territory. The Code was written for feudal order, but according to principles of natural law. This second thing has, in addition to widely formulated and flexible legal norms, left enough space for extensive interpretation of outdated rules, and filling in the legal lacunas, whose number was increasing as the time passed. Courts often used this opportunity in a creative manner, contributing to survival of the Code. Many additions and changes were made to the Code, but there were few of those who thought that it should be changed by a new one Code. Austrians are preparing a more detailed revision of the ACC, which will allow modernization of the national law and it's synchronization with trends in current European law, but on the other hand, to preserve the two century old legal heritage. The second part of this article is dedicated to the influence of the Austrian Civil Code on the development of civil law in the former Yugoslavia and Serbia. ACC served as model for adoption of the Serbian Civil Code of 1844. It was applied as a positive law in the first half of XX century, in one part of the territory of today's Autonomous Province of Vojvodina. Formally, legal rules of the Austrian Civil Code can even be applied today, according to the Law on Nullity of Legal Regulations Enacted Prior to 6th of April 1941, and During the Enemy Occupation. However, that possibility is more theoretical than practical, and is limited only to a narrow field inside the property law, because in other fields, Serbia has an equally proper, and in domain of obligation law, even a more modern legal regulative, which was mentioned by some Austrian authors.

scholarly journals Generalizing Culprit Resolution in Legal Debugging with Background Knowledge

2020 ◽  
Author(s):  
Wachara Fungwacharakorn ◽  
Ken Satoh
Keyword(s):  
Background Knowledge ◽  
Legal Rule ◽  
Rule Based ◽  
Legal Rules ◽  
Root Cause ◽  
Intended Interpretation ◽  
The Law ◽  
Legal Concepts ◽  
The Way

Since the legal rules cannot be perfect, we have proposed a work called Legal Debugging for handling counterintuitive consequences caused by imperfection of the law. Legal debugging consists of two steps. Firstly, legal debugging interacts with a judge as an oracle that gives the intended interpretation of the law and collaboratively figures out a legal rule called a culprit, which determines as a root cause of counterintuitive consequences. Secondly, the legal debugging determines possible resolutions for a culprit . The way we have proposed to resolve a culprit is to use extra facts that have not been considered in the legal rules to describe the exceptional situation of the case. Nevertheless, the result of the resolution is usually considered as too specific and no generalizations of the resolution are provided. Therefore, in this paper, we introduce a rule generalization step into Legal Debugging. Specifically, we have reorganized Legal Debugging into four steps, namely a culprit detection, an exception invention, a fact-based induction, and a rule-based induction. During these four steps, a new introduced rule is specific at first then becomes more generalized. This new step allows a user to use existing legal concepts from the background knowledge for revising and generalizing legal rules.

STUDI KASUS PENETAPAN KEMBALI TARIF DAN/ATAU NILAI PABEAN (SPKTNP) OLEH DIREKTUR JENDERAL BEA DAN CUKAI: TINJAUAN PUTUSAN PENINJAUAN KEMBALI MAHKAMAH AGUNG RI

2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Akhmad Firdiansyah ◽  
Wachid Hasyim ◽  
Yonathan Agung Pahlevi
Keyword(s):  
Qualitative Analysis ◽  
Supreme Court ◽  
Director General ◽  
Import Duty ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

ABSTRACT In accordance with the mandate of Article 23A of the 1945 Constitution, all tax stipulations must be based on the law. To carry out the mandate in accordance with Article 17 of the Customs Law Number 17 of 2006, the Director General of Customs and Excise is given the attributive authority to issue reassignment letter on Customs Tariff and / or Value for the calculation of import duty within two years starting from the date of customs notification carried out through a mechanism of audit or re-research. To examine the application of these legal norms, there are currently Supreme Court (MA) Judgment (PK) decisions that accept PK applications from PK applicants and question the legality of issuing SPKTNP by the Director General of BC. This study uses explosive qualitative analysis to analyze the issuance of SPKTNP by the Director General of BC. The results of this study indicate that the Supreme Court is of the view that the issuance of SPKTNP by the Director General of BC is a legal defect, while DGCE considers the issuance of SPKTNP by the Director General of BC according to the provisions.Key words: official decision, reassignment letter, DCGE  ABSTRAKSesuai amanah Pasal 23A Undang-Undang Dasar 1945 Segala penetapan pajak harus berdasar undang-undang. Untuk menjalankan amanah tersebut sesuai Pasal 17 Undang-Undang Kepabeanan Nomor 17 Tahun 2006 Direktur Jenderal Bea dan Cukai (Dirjen BC) diberikan kewenangan atributif untuk menerbitkan Surat Penetapan Kembali Tarif dan/atau Nilai Pabean (SPKTNP) guna penghitungan bea masuk dalam jangka waktu dua tahun terhitung sejak tanggal pemberitahuan pabean yang dilakukan melalui mekanisme audit atau penelitian ulang. Untuk meneliti penerapan norma hukum tersebut dewasa ini terdapat putusan Peninjauan Kembali (PK) Mahkamah Agung (MA) yang menerima permohonan PK dari pemohon PK dan mempermasalahkan legalitas penerbitan SPKTNP oleh Dirjen BC. Penelitian ini mengunakan analisis kualitatif eksplotarif untuk menganalisis penerbitan SPKTNP oleh Dirjen BC. Hasil penelitian ini menunjukkan bahwa MA berpandangan penerbitan SPKTNP oleh Dirjen BC adalah cacat hukum, sedangkan DJBC beranggapan penerbitan SPKTNP oleh Dirjen BC telah sesuai ketentuan.Kata Kunci: penetapan pejabat, SPKTNP, Direktur Jenderal Bea dan Cukai.

scholarly journals A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Rossella Esther Cerchia
Keyword(s):  
Dense Network ◽  
Legal Rules ◽  
The Law ◽  
Laws And Regulations

Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.

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