scholarly journals Contemporary Expressions of Personal Law: Co-Existence or Conflict with the Territorial Law?

2021 ◽  
Vol 94 ◽  
pp. 141-152
Author(s):  
Hubert Izdebski

The paper concerns the present role played in law-in-the-books and law in action as well by a very traditional law type, namely that of personal law. In spite of the dominating role that the other type, i.e. territorial law, has played in Western law for more than a thousand years, there are numerous contemporary expressions of the existence and application of personal laws. In particular, this is the case of the vivacity of traditional personal laws characteristic of non-Western legal traditions (above all shari’a), including attempts at their application in the Western environment. There are also various other examples of the recognition, at least in the practice, of personal laws in the Western law jurisdictions, which is indicated with the example of Polish law.

2021 ◽  
Vol 3(164) ◽  
pp. 143-165
Author(s):  
Piotr Stanisz

The purpose of the present study is to analyse the restrictions on the freedom of religious worship introduced by the Polish executive authorities in the face of the spreading COVID-19 epidemic. The analysis aims to answer questions not only concerning the conformity of these actions with the Constitution of the Republic of Poland and statutory laws, but also pertaining to the issue of the level of preparation of Polish law for an epidemic. In reference to these questions, the author concludes that the introduction of restrictions on the freedom to manifest religion by acts of worship in the regulations issued by the Minister of Health and the Council of Ministers exceeds the bounds of statutory authorisation and is inconsistent with the Polish Constitution. According to the Constitution of the Republic of Poland, passing a law remains the only admissible way of introducing restrictions on the freedom of manifestation of religion, and there are no exceptions to this rule even in states of emergency. On the other hand, the author also points out that if the effectiveness of combating this kind of epidemic really depends on possibility of introducing the above-mentioned restrictions without a long legislative process, it means that Polish executive authorities have been confronted by the constitutional legislator and the legislature with a choice between being efficient and acting in conformity with the Constitution and statutory laws. Therefore, the article postulates that it is necessary to make deep changes to the current law. Elaborating a broad concept of these changes requires further analysis, and the relevant discussion needs to take into account the experience gained so far in combating the coronavirus epidemic, the importance of freedom of thought, conscience and religion, and the solutions adopted in other countries. A clear and balanced, as well as properly sequenced and democratically justified specification of the rules that should be followed by the executive when introducing restrictions related to the spread of the epidemic, even with regard to such important values as the freedom to manifest religion through acts of worship, is undoubtedly more appropriate than formally ruling out the possibility of taking action that may turn out necessary in the future.


2018 ◽  
Vol 87 (4) ◽  
pp. 1003-1028
Author(s):  
Sandra Slater

This piece explores the origins of the anomalous 1655 New Haven statute against sodomy that broke with legal traditions and codes both in England and New England. A lengthy and extraordinarily specific piece of legislation, the New Haven law stands in stark contrast to the minimalist language favored by the English in the early seventeenth century. When viewed within the larger context of clerical animosities, particularly between Thomas Hooker and John Cotton, there is a strong circumstantial case to make for its implementation as an extension of John Cotton's rejected Massachusetts Bay legal code,Moses His Judicials, applied by his friend and admirer John Davenport in New Haven. A devout disciple of John Cotton, John Davenport's New Haven colony relied on Cotton's influence and stood as a rebuke to Thomas Hooker's Connecticut settlements, often criticized as too spiritually lax by those in Massachusetts Bay and New Haven. While seeking to demonstrate greater piety and rigidity, John Cotton and Thomas Hooker sought to exert dominance over the other, with Cotton employing Davenport's colony as an effective castigation of Hooker's perceived liberality. This piece is reflective of trends in studies of sexuality which suggest that ideas and identities related to sexuality do not operate in isolation, but often mirror anxieties not necessarily connected to the regulation of sexual activities. This article situates the 1655 Sodomy Statue within a broader context in order to understand its origins and animosities that potentially motivated its inclusion into the New Haven legal statutes.


2019 ◽  
Vol 5 (1) ◽  
pp. 134
Author(s):  
Syed Fadhil Hanafi Syed A. Rahman

Constitutionalism dictates that the government must only act within the four walls of the constitution. While adherence to this fundamental doctrine is proven to be difficult, it becomes more complicated when the walls are unclear. For decades, Malaysians struggle to ascertain the actual legal value of religion, particularly Islam, in its Federal Constitution and the impact of religion to the Malaysian legal system. Some opined that secularism is a basic structure of the Malaysian Federal Constitution and in the name of constitutionalism, religious laws cannot be the basis for administration of public law and must be confined to personal law matters. On the other hand, some opined that Islam constitutes a salient feature of the Constitution and the position of Islam as the religion of the Federation implies Malaysia as an Islamic state. This paper analyses the conflicting views, via qualitative studies of constitutional provisions which have religious element in the light of their history, together with relevant case laws which interpreted them. The analysis is done with a view to determine whether the Malaysian Federal Constitution is a secular instrument creating a secular state or a religious document establishing a theocratic state. From such analysis, the author presents that the Malaysian Federal Constitution, albeit giving special preference to Islam, is a religion-neutral document which is receptive to both religious and secular laws. This is based on the fact that the Constitution upholds the validity of both secular and religious laws for as long as they are enacted according to procedural laws required by the Constitution.


2006 ◽  
Vol 55 (3) ◽  
Author(s):  
Giuseppe Dalla Torre

Dopo essersi rilevato il fenomeno della rinascita del fatto religioso nell’odierna società secolarizzata, grazie anche al massiccio fenomeno immigratorio, si descrive l’impatto del pluralismo etnico-religioso sulle tradizionali realtà degli ordinamenti giuridici statali; impatto reso ancora più problematico per l’ascesa di nuovi poteri, in particolare quello tecnico-scientifico, insofferenti ad una eteroregolamentazione non solo sul piano etico, ma anche sul piano giuridico. Si mette quindi in evidenza una crescente ambiguità che investe la biogiuridica: da un lato la nuova esigenza di riconoscere il rivendicato “diritto alla diversità” da parte delle diverse formazioni etnico-religiose; dall’altro l’esigenza di una regolamentazione giuridica uniforme a garanzia dell’ordinata convivenza attorno ad una scala valoriale che abbia nella “vita” il bene centrale ed ultimo da salvaguardare. Tra le conclusioni cui si giunge è innanzitutto quella per cui la pacifica convivenza in una società multietnica e multireligiosa può essere assicurata, nel rispetto delle diverse tradizioni e culture, attraverso il ricorso a moderati e saggi riconoscimenti di spazio al diritto personale all’interno degli ordinamenti statali, ma nei limiti rigorosi posti dalle esigenze di tutela della dignità umana. Ciò tocca anche la questione dei “nuovi poteri” che, nel contesto di una società globalizzata, impongono una rielaborazione dell’idea di diritto che, partendo dal quadro di un sistema di fonti che tende sempre più ad essere organizzato non secondo gerarchia ma secondo competenza, si ispiri al principio del riconoscimento dell’essere umano nella sua dignità, indipendentemente dall’appartenenza etnico-religiosa. Infine si mette in evidenza l’inaccettabilità di un “diritto debole”, solo procedimentale, perché sostanziale negazione della funzione stessa del diritto, che è quella di prevenire e/o dirimere i conflitti tra interessi in gioco e, quindi, i contrasti tra le parti della società, difendendo nel rapporto i soggetti più deboli; così come si mette in evidenza che il prezioso bene della laicità dello Stato non è – come invece spesso si ritiene – salvaguardato da un “diritto debole”, ma solo da un diritto giusto. ---------- After being noticed the phenomenon of the rebirth of the religious fact in today’s secularized society, it is described also the impact of the ethnic-religious pluralism on the traditional realities of the government juridical arrangements; impact made even more problematic for the ascent of new powers, particularly that technical-scientific, impatient to an heteroregulation not only on the ethical plan, but also on the juridical plan. It is put therefore in evidence an increasing ambiguity that invests the biojuridical: from one side the new demand to recognize the vindicated “law to difference” from different ethnic-religious formations; from the other the demand of a uniform juridical regulation to guarantee of the orderly cohabitation around to a scale of value that has in “life” central and ultimate good to safeguard. Between the conclusions which the author comes it is, first of all, that for which the peaceful cohabitation in a multiethnic and multireligious society can be assured, in the respect of the different traditions and cultures, through the recourse to moderate and wise recognition of space to the personal law into the government arrangements, but in the rigorous limits set by the demands of guardianship of human dignity. This also touches the matter of new powers that, in the contest of globalization, impose a new elaboration of the idea of law that, departing from the picture of a system of sources that extends more and more to not be organized according to hierarchy but according to competence, inspire to the principle of the recognition of the human being in its dignity, independently from the ethnic-religious affiliation. Finally it is put in evidence the unacceptability of a “weak law”, just procedural, as substantial negation of the law function itself, which is that to prevent and/or to settle the conflicts between affairs at stake and, therefore, contrasts between the parts of the society, defending in the relationship the weakest subjects; as it is evidenced that the precious good of laity of the State is not - like instead it is often considered - safeguarded by a weak law, but only by a correct law.


2017 ◽  
Vol 2 (1) ◽  
pp. 105
Author(s):  
Anna Górecka

CONCEPT OF A DATABASE IN BASIS OF COPYRIGHT AND NEIGHBOURING RIGHTS ACT AND DATABASE PROTECTIONSummary Collecting and processing of different kinds of data is commonly practiced nowadays. The novelty under the polish law is an introduction of the legal protection of such data bases. This protection is provided in two particular regulations: the act on copyrights and neighbouring rights of 4th February 1994 and the act on the protection of the database of 27thJuly 2001.The database is defined as any kind of collections, lists of information, materials or any other elements systemized according to specified criterion. Its essence consists in collecting and confronting given data using the settled method but not in the materials collected in such kind of evidence. Any database consists of various information thus it is treated as a collection of materials. That is of no importance if the collected elements are subject to the legal protection therefore it seems that such collection may contain any data not only these protected under the copyrights and it does not matter if they are protected under the law or no or if they are confidential or easy available.Each of the regulations mentioned above provides the different system of protection. The act on copyrights regards the external aspects of a collection (the creativity must consist in a selection, systématisation or confrontation of the information) and protects only the creative elements of the collection. Thus with regard to databases (constituting protected good within the meaning of the copyrights law) it must be noticed that they will be protected only within the scope of their creativity that could be however expressed in many aspects.The other regulation gives the possibility of protecting the contents of the database (the internal aspect of the database). Applicability of one of these regulations excludes applicability of the other as the article 1 of the law on the protection of the database states that the object of the legal protection under this law is a database which does not constitute protected good within the meaning of the law on copyrights. However such database has to comply with the requirement of a substantial investment. Such substantial investment has to be undertaken in order to prepare, verify or present the contents and it may consist in the quality as well as the quantity of the investment while the method of the collection of the data is unrestricted. Thus there is no possibility of the cumulative protection of the database. However it was constituted the new and genuine right allowing collection of the data and its subsequent processing as a whole or in part, according to both the quality as well as the quantity. Such right is of the exclusive and transferable nature.


2021 ◽  
Vol 28 ◽  
pp. 131-161
Author(s):  
Michał Wojewoda

The article concerns the problem of birth certificates of children of same sex couples, which have been transcribed into the Polish register of civil status. Although such transcriptions, after the resolution of the Supreme Administrative Court of 2.12.2019, seem not to be allowed, a significant number of foreign certificates had already been transcribed beforehand. The author argues that there are limited grounds to eliminate such acts from the Polish register. Especially in cases, in which the transcribed birth act — generated in Poland — names the woman who gave birth to the child (which woman is always considered to be the mother according to Polish law), such acts can properly fulfill their role by proving the fact of the child’s birth and by explaining the motherhood. The fact that the other parent (of the same sex) is not mentioned at all or is mentioned only in an annotation to a birth act can be well reconciled with the rules of the Polish law.


Author(s):  
T. M. Charles-Edwards

The sources drawn upon for this paper are legal manuals. These come from the seventh and eighth centuries in the case of Ireland and, for Wales, from the thirteenth. Alongside some similarities in the way the two legal traditions handled concepts of property, there were also huge differences. The Irish texts are, on the whole, richer and more detailed. Where they are most rewarding is in the accounts they give of relationships and procedures presupposing distinctions between forms of property and possession: clientship, claims to land, pledging, and distraint. In Welsh law there are some clear parallels, most evidently in the case of claims to land, but the main interest lies in a more elaborate and explicit set of concepts. In Irish law, on the other hand, the main interest lies not in explicit conceptual distinctions but rather in distinctions implied by different areas of law, particularly by legal rituals.


2014 ◽  
pp. 29-72 ◽  
Author(s):  
Alina Jurcewicz ◽  
Paweł Popardowski

In the article, the Authors attempt to systematically formulate “property”, from the point of view of both – Polish and EU legislation. They highlight various understandings of property and point out, how complicated the evolution of this law aspect has been. The point of reference in the conducted analysis is the assumption that property is one of the most important elements of the legal order. It is also perceived as a pillar of social and economic system. At the same time, property, and more precisely – its juridical concept assumed by a legislator as a factor shaping not only the content of property right but also determining its allowable forms, constitutes a fundamental instrument used by a country to influence its social and economic reality. As a reference to the Polish law, the Authors presented understandings of property that result from the constitution and civil law and pointed out fundamental differences between them. They highlighted also the fact that the constitutional concept of property is normatively superior to the other concept, what is reflected by the fact that property, formulated in the Constitution as an elementary right, determines the requirements concerning statutory under-standing of property. According to the principles of EU legislation, property is also perceived as an elementary right, but, as in the Polish law, it does not constitute an absolute (unlimited) right. It is though indicated that public interest in the broad sense of the term may constitute a legal prerequisite for interference in owner’s entitlements.


2020 ◽  
Vol 40 (2) ◽  
pp. 225-229
Author(s):  
Sarah Ghabrial

Abstract The main intervention of this special section is to identify and reposition race and colonial law as (conspicuously) absent referents in widely accepted genealogies of the state of exception—most notably, that of Giorgio Agamben—and to offer methodological pathways, based on historical and contemporary examples, of how colonial legal histories might be “written back” into this history. Collectively, these essays attempt to show how race thinking and exception each operate as the other's alibi: exception instantiating and substantiating race difference, and race difference justifying exception and ushering its expansion and normalization in steadily more realms of law and life. In so doing, this special section proposes at least three possible avenues of further inquiry, each of which builds on and into the other: First, by virtue of their geographic and temporal scope, these essays signal a way of approaching sovereignty and exception not as totalizing and synthetic, but rather as multivalent, recursive, and regenerative. Second, the designation of “partial personhood” or “disabled citizenship” is offered as a way of conceptually traversing trans-Mediterranean and trans-Atlantic historical experiences and legal traditions. Third, these essays signal the need for more sustained exploration at the nexus of law, labor, and violence.


2017 ◽  
Vol 297 ◽  
pp. 79-86
Author(s):  
Kazimierz J. Pawelec ◽  

Causing a catastrophe in road traffic or the direct danger of its occurrence by deliberate misconduct has been a subject of disputes in both judicature and in science. In principle it was excluded that such a catastrophe or its immediate danger might be committed purposefully, with a direct intent, unless it involved a criminal offense, such as a terrorist attack that might consist in a multiple manslaughter, diversion or sabotage. On the other hand, committing the said offenses intentionally, but just with a prospective intent, consisting essentially in the ability of anticipation of the outcome and consenting to it in practice, occurred rarely and has not been excluded but conditioned by occurrence a few factual circumstances that required conducting a reasoning process. This problem is discussed in the hereby article, which presents difficult and controversial issues, occurring not only in the Polish law. It presents the basic issues in the process of recognising the statutory signs of the crime of causing a catastrophe and its immediate danger, the subject matter of the identified offenses, their subject party and the coincidences of the law. It signals the existence of numerous difficulties of evidential nature with regard to determining guilt of a perpetrator who is not always a road user, even though linked with it indirectly. These considerations may be particularly useful for practitioners dealing with such types of crime, including criminal prosecution of traffic accidents.


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