The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants

2021 ◽  
Vol 15 (1) ◽  
pp. 153-186
Author(s):  
Issi Rosen-Zvi ◽  
Israel Rosenberg
Keyword(s):  
Interest Groups ◽  
Public Participation ◽  
Civil Procedure ◽  
Legislative Process ◽  
Procedural Law ◽  
Litigation Process ◽  
Public Scrutiny ◽  
Substantive Law ◽  
First Time

Abstract This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.

ON INTERACTION OF MATERIAL AND PROCEDURAL LAW IN THE CONTEXT OF REFORMING THE NOMENCLATURE OF SCIENTIFIC SPECIALTIES IN JURISPRUDENCE

2021 ◽  
Vol 3 (3) ◽  
pp. 214-231
Author(s):  
S.I. Suslova
Keyword(s):  
Civil Law ◽  
Scientific Research ◽  
Civil Procedure ◽  
Dialectical Logic ◽  
Advantages And Disadvantages ◽  
Procedural Law ◽  
Depth Study ◽  
Civil Science ◽  
Substantive Law ◽  
The Relationship

Introduction: the influence of the material branches of law on the content and development of procedural branches has long been substantiated in the legal literature. At the same time, civil law scholars, limited by the scope of the nomenclature of scientific specialties in legal sciences, do not have the opportunity to conduct dissertation research aimed at identifying the influence of procedural branches on the norms of substantive law. With regard to scientific research, the study of such an impact is currently permissible only within the specialty 12.00.15. Reforming the nomenclature of scientific specialties towards its enlargement creates the basis for the development of the scientific theory of intersectoral relations, developed by M.Iu. Chelyshev. An in-depth study of the intersectoral interaction of civil law and civil procedure will contribute not only to the development of scientific knowledge, but also will allow solving practical problems at a different methodological level. Purpose: to analyze the stages of the formation of scientific specialties in the context of the relationship between civil law and procedure, to identify the advantages and disadvantages of uniting and dividing civil law and procedure in scientific research, to analyze dissertations in different periods of development of the science of civil law and the science of civil procedure, to formulate ways to improve directions of research to bridge the gap between the science of civil law and procedure. Methods: empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. The legal-dogmatic private scientific method was used. Results: identified the main views on the ratio of material and procedural branches in legal science; it is illustrated that the intersectoral approach is currently admissible only for dissertations in the specialty 12.00.15, which led to an almost complete absence of scientific research on this topic in civil science; substantiated the need to establish the bilateral nature of the relationship and interaction of material and procedural block. Conclusions: reforming the nomenclature of scientific specialties by right in the direction of their enlargement should have a positive effect on bridging the gap that has developed between works on civil law and civil law procedure in the last years of their separate existence. This is especially true of civil science, which developed its own scientific theories in isolation from the possibilities of their implementation within the framework of procedural law. The methodological basis for solving these problems has already been formed – this is an intersectoral method, the application of which is justified and demonstrated in the works of M.Iu. Chelyshev.

scholarly journals Protective function of labour law and amendments to the code of civil procedure

2021 ◽  
Vol 124 ◽  
pp. 35-46
Author(s):  
Anna Boguska ◽  
Łukasz Pisarczyk
Keyword(s):  
Civil Procedure ◽  
Employment Relationship ◽  
Labour Law ◽  
Protective Function ◽  
Procedural Law ◽  
Civil Proceedings ◽  
New Institutions ◽  
Polish Code ◽  
Substantive Law

The purpose of this article is to present the safeguard role of the labour law in the context of labour law disputes. Authors deliberate to what extent the procedural law impacts the substantive law. Particular attention was paid to new institutions of the Polish code of civil proceedings introduced by the law of 4 July 2019 and their influence on the procedural position of the parties of the employment relationship.

scholarly journals The Reform of the Procedural Religious Court Law Based on Islamic Law in Indonesian Legal System

2017 ◽  
Vol 1 (2) ◽  
pp. 114
Author(s):  
Abdullah Gofar
Keyword(s):  
Islamic Law ◽  
Civil Procedure ◽  
New Order ◽  
Applicable Law ◽  
Philosophical Orientation ◽  
Procedural Law ◽  
History Of ◽  
Western Law ◽  
Substantive Law ◽  
Religious Courts

The history of the development of religious courts and the inner atmosphere struggle of Muslims in Indonesia which faced the state’s political force in the New Order era has brought forth the religious procedural law. Article 54 of The 1989 Law No.7 stated that "the applicable law in the Religious Courts are applicable procedural law in the General Court, except those specifically regulated in this law." Philosophically, the Western law both civil substantive law (Burgerlijke Wetboek) and formal law/civil procedure (HIR and Rbg), prepared using the approach of individualism, secular, the optical properties of the nature legal dispute was seen as objects (Zaak) which is sheer material. While the substantive law in religious courts is the law derived from Islamic law that stem from philosophical values of Islam. So, the presence of the Religious Courts in the scope of judicial in Indonesia still raises problems, including: Why is the western law of civil procedure which promote the value of materialism and formal correctness adopted into religious procedural law, whereas the philosophical orientation is not aligned with the substantive law based on Islamic law, and what are the efforts to reform the reformulation of procedural law of religious courts.

REVIEW OF THE MONOGRAPH “CONVERGENCE (HARMONIZATION) OF CIVIL PROCEDURAL LAW WITHIN THE EU AND THE POST-SOVIET SPACE (COMPARATIVE LEGAL ASPECT)” BY K.L. BRANOVITSKY

2021 ◽  
Vol 11 (3) ◽  
pp. 335-343
Author(s):  
S.L. DEGTYAREV
Keyword(s):  
Legal Aspect ◽  
Civil Procedure ◽  
Legal Regime ◽  
Basic Part ◽  
Procedural Law ◽  
Multilateral Agreements ◽  
Soviet Space ◽  
First Time ◽  
The Eu ◽  
Post Soviet Space

The review is devoted to the work, which, perhaps, for the first time so systematically and thoroughly analyzes the phenomenon of convergence of legal systems in the process of globalization and modern integration formations, its impact on the development of procedural institutions of the Russian process, prospects, advantages and obstacles, possible tools of implementation and use from the perspective of civil procedure law in its broadest sense. Separately stands the author’s thesis on the procedural institutions, which could act as an object of convergence. By analogy with the EU countries, the author refers and investigates in detail the “international competence” through the legal regime of international competence in the existing multilateral agreements and some aspects of the legal regime of international competence in the national legal orders of the EAEU members. In conclusion, it is concluded that comprehensive and systemic knowledge of the mechanism and tools of such an important and objective legal phenomenon as the convergence (harmonization) of civil procedural law in any state, is an element of the basic part both in scientific and practical activities of lawyers.

Islamic and Jewish Religious Feminists Tackle Islamic and Jewish Oral Law: Maintenance and Rebellion of Wives

2017 ◽  
Vol 11 (1) ◽  
pp. 35-63
Author(s):  
Ruth Roded
Keyword(s):  
State Policy ◽  
Political System ◽  
Daily Life ◽  
The State ◽  
The Political ◽  
Jewish Law ◽  
Modern Times ◽  
Parallel Case ◽  
First Time

Beginning in the early 1970s, Jewish and Muslim feminists, tackled “oral law”—Mishna and Talmud, in Judaism, and the parallel Hadith and Fiqh in Islam, and several analogous methodologies were devised. A parallel case study of maintenance and rebellion of wives —mezonoteha, moredet al ba?ala; nafaqa al-mar?a and nush?z—in classical Jewish and Islamic oral law demonstrates similarities in content and discourse. Differences between the two, however, were found in the application of oral law to daily life, as reflected in “responsa”—piskei halacha and fatwas. In modern times, as the state became more involved in regulating maintenance and disobedience, and Jewish law was backed for the first time in history by a state, state policy and implementation were influenced by the political system and socioeconomic circumstances of the country. Despite their similar origin in oral law, maintenance and rebellion have divergent relevance to modern Jews and Muslims.

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

The Role of Government Backbenchers

2017 ◽  
Author(s):  
Meg Russell ◽  
Daniel Gover
Keyword(s):  
Policy Change ◽  
Legislative Process ◽  
Role Of Government ◽  
Policy Actors ◽  
Corporate Manslaughter ◽  
Party Cohesion ◽  
Government Legislation

This chapter explores how government backbench parliamentarians in both chambers at Westminster influence the content of government legislation and the dynamics of politics. Government backbenchers are often thought to be Westminster’s most influential policy actors, operating through the ‘intraparty mode’. As summarized here, governments have recently become less able to rely on their votes, thanks to declining party cohesion. Yet governments are rarely defeated as a result of rebellious votes. This chapter analyses government backbenchers’ amendments proposed to the 12 case study bills—some of which served purposes other than immediate policy change—and their role as ‘pivotal voters’ in resolving legislative disputes with other (particularly opposition) actors. It also emphasizes their influence on legislation before it is introduced, and the importance of ‘anticipated reactions’. For example, ministers introduced the Corporate Manslaughter Bill only reluctantly, following backbench pressure. Backbenchers hence have subtle, and often hidden, influence in the legislative process.

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