scholarly journals Direito e Sociedade: as Estruturas e Funções da Lei no Direito Inglês

2021 ◽  
Vol 12 (12) ◽  
pp. 99-122
Author(s):  
Maria Celeste Cordeiro Leite dos Santos ◽  
Marilene Araujo
Keyword(s):  
Common Law ◽  
Primary Objective ◽  
Political Society ◽  
Niklas Luhmann ◽  
First Semester ◽  
Legal Rules ◽  
Catholic University ◽  
Theory Of Law ◽  
Different Cultures

The article “Law and Society: the structures and functions of the Law in English Law”, is the result of teaching aimed at students of the Master’s Degree in Law at the Pontifical Catholic University of São Paulo, in the first semester of 2020 – Discipline General Theory of Law I – “Law, Power and Justice: the Hyper-cycle and the Legal Order”. Its primary objective is to understand how legal rules are made and used in Common Law in its similarities and distinctions from Civil Law. Civil society (societas civilis) is opposed to “natural society” (societas naturalis), being synonymous with “Political society” (in correspondence, respectively with the derivation of civitas and polis). The study of society as a social system, its structures and macro and micro functions in the legal subsystem (according to Niklas Luhmann) is current, predominant, and will be the object of this study in Chapter I. Chapter II, aims to investigate the sources and models Common Law. Chapter III, analyzes the Hypercycle of Law and makes conjectures about Common Law. Since law is a multifaceted phenomenon and difficult to define rigorously, due to its ambiguity and syntactic imprecision in its current use in different cultures, the methodology used was Aristotelian Topic, in the focus of zetetic investigation, with constant opening for constant questioning. The Conclusions and Bibliography follow.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

scholarly journals Default and Termination of Contract: A comparative Study between Indonesia and The United Kingdom

Yuridika ◽  
2020 ◽  
Vol 35 (3) ◽  
pp. 469
Author(s):  
Akhmad Budi Cahyono
Keyword(s):  
United Kingdom ◽  
Comparative Study ◽  
Comparative Studies ◽  
Common Law ◽  
Contract Law ◽  
Legal Rules ◽  
Contractual Relationship ◽  
The United Kingdom ◽  
Injured Party ◽  
The Right

Default is something that often occurs in contractual relationship. It can be not perform its obligations in the contract in all or in a part, performing its obligations but not in accordance with was agreed, performing its obligations but not in time, and performing something that is prohibited in the contract. Due to default, the injured party may claim compensation and / or terminate the contract. The problem is, the Indonesian Civil Code does not specify how a contract can be terminated in case of default. Therefore, it is necessary to conduct a comparative study in other countries in terms of how a default can terminate the contract. The British which adopt common law tradition where jurisprudence is the main source of law is the right choice for conducting comparative studies. Countries with common law traditions have detailed legal rules based on jurisprudence. As in Indonesia, according to British contract law, defaults also can terminate the contract. However, unlike in Indonesia, according to British contract law, termination due to a default is only allowed in the event that the default is very serious. The very serious forms of default will be elaborated and become a part of the discussion in this paper.

Is Information Ethics Culturally Relative?

2010 ◽  
pp. 1-14
Author(s):  
Philip Brey
Keyword(s):  
Cultural Differences ◽  
Intellectual Property Rights ◽  
Cultural Context ◽  
Information Technologies ◽  
Information Ethics ◽  
Freedom Of Information ◽  
Intercultural Understanding ◽  
Different Cultures ◽  
Moral Absolutism

In this chapter, I examine whether information ethics is culturally relative. If it is, different approaches to information ethics are required in different cultures and societies. This would have major implications for the current, predominantly Western approach to information ethics. If it is not, there must be concepts and principles of information ethics that have universal validity. What would they be? I will begin the chapter by an examination of cultural differences in ethical attitudes towards privacy, freedom of information, and intellectual property rights in Western and nonwestern cultures. I then analyze the normative implications of these findings for doing information ethics in a cross-cultural context. I will argue for a position between moral absolutism and relativism that is based on intercultural understanding and mutual criticism. Such a position could be helpful in overcoming differences and misunderstandings between cultures in their approach to information and information technologies.

Boundaries of Criminal Liability: Participation in Crime, Preparatory Offences and Omissions

2020 ◽  
Vol 53 (3) ◽  
pp. 392-408
Author(s):  
Miriam Gur-Arye
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Review Essay ◽  
Criminal Liability ◽  
Common Law ◽  
Civil Law ◽  
Legal Rules ◽  
Core Concepts ◽  
The Common ◽  
Anglo American

The book Core Concepts in Criminal Law and Criminal Justice: Anglo-German Dialogues is the first volume of an Anglo-German project which aims ‘to explore the foundational principles and concepts that underpin the different domestic systems and local rules’. It offers comparative perspectives on German and Anglo-American criminal law and criminal justice as ‘examples of the civil law and the common law worlds’. The comparisons ‘dig beneath the superficial similarities or differences between legal rules to identify and compare the underlying concepts, values, principles, and structures of thought’. The review essay focuses on the topics of omissions, preparatory offences, and participation in crime, all of which extend the typical criminal liability. It presents the comparative German and Anglo-American perspectives discussed in the book with regard to each topic and adds the perspective of Israeli criminal law. It points out the features common to all these topics as an extension of criminal liability and discusses the underlying considerations that justify the criminalisation of omissions, preparatory offences, and participation in crime. In evaluating whether extending criminal liability in these contexts is justified, the review essay suggests reliance on two main notions: that of ‘control over the commission of the offence’ and that of ‘liberty (or personal freedom)’.

11. Interference With Chattels

2013 ◽  
Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis
Keyword(s):  
Common Law ◽  
Legal Rules ◽  
The Common ◽  
Collective Term

This chapter discusses trespass to goods, conversion, and negligence. The present law of trespass to chattels is governed by the Torts (Interference with Goods) Act 1977, which introduces a collective term ‘wrongful interference with goods’ to cover trespass, conversion, negligence, and any other tort resulting in damage to goods or to an interest in goods. The Act abolishes the tort of detinue, but otherwise has little or no impact on the principles of liability developed by the common law: thus, the nomenclature and substantive scope of the common law claims remain significant to this day in understanding the legal rules in this area.

scholarly journals Consent for Non-Therapeutic Male Circumcision on Religious Grounds

2009 ◽  
Vol 91 (2) ◽  
pp. 152-154 ◽  
Author(s):  
Richard Robinson ◽  
Erica Makin ◽  
Robert Wheeler
Keyword(s):  
Male Circumcision ◽  
Service Providers ◽  
Common Law ◽  
Case Note ◽  
Parental Consent ◽  
Retrospective Case ◽  
Legal Rules ◽  
The Common ◽  
Surgical Unit ◽  
Case Note Review

INTRODUCTION The aim of this study was to assess whether surgeons are conforming to guidance laid down by professional organisations and the courts in obtaining dual parental consent for non-therapeutic circumcision. PATIENTS AND METHODS A retrospective case-note review over a 12-month period (April 2005 to April 2006) of circumcisions in boys under the age of 16 years in a tertiary paediatric surgical unit was undertaken. RESULTS A total of 62 boys aged 1–14 years (median age, 4 years) underwent non-therapeutic circumcision. Written consent from both parents was obtained in only 4 cases (6.4%). In no case was written consent obtained from the patient or their views documented. In 58 cases, the written consent was provided by only one parent; the mother in 34 (55%), the father in 24 (45%). Of these 58 cases, in 25 (43%) both parents attended with the child on the day of surgery. CONCLUSIONS The data reveal a consistent non-conformity with recommended practice and the common law. It seems unlikely that the doctors involved are deliberate and inveterate law-breakers. The reason for this non-compliance may be ignorance of the rules, or due to the impracticality of their implementation. There is evidence that doctors are ignorant of the legal rules pertaining to their patients, and the results may reflect this ignorance. However, there are also practical difficulties in obtaining dual consent that may be partially responsible for the variance. Inevitably, investment will be required to overcome these difficulties. Cost may tempt service providers to abandon the provision, leaving parents to their own devices.

An Economic Theory of Law

2000 ◽  
Vol 12 (1) ◽  
pp. 1-16
Author(s):  
Hans-Peter Schwintowski
Keyword(s):  
Economic Theory ◽  
Negative Feedback ◽  
Constitutional Law ◽  
Normative Theory ◽  
Individual Freedom ◽  
Empirical Knowledge ◽  
Normative Feedback ◽  
Evolutionary Dynamic ◽  
Legal Rules ◽  
Theory Of Law

What has to be developed here is a comprehensive general economic theory of law, based on normative individualism, i.e. the notion of individual freedom. Such a theory can only be evolutionary in character. It must recognize empirical knowledge and transfer it into norms, yet remain open to innovation on all levels and have the capacity to translate these experiences normatively through a corrective rule that has only existed in current law as the norm checks implied at the level of constitutional law. An economic theory—guided by consensus and nevertheless efficiency-oriented—would be based on a negative feedback between experience and legal rules and corrective rules and experience. It would no longer be a matter of a purely descriptive, static, empirical economic theory, but rather an evolutionary, dynamic and empirically normative feedback theory. This development would imply not only an economic theory of law but also a normative theory of economics.

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