scholarly journals MASLAHAH AND THEIR RELATIONSHIP WITH LEGAL ISTINBAT, (STUDY OF AL-JUWAYNI THOUGHT IN THE BOOK OF AL-BURHAN FI PROPOSED AL-FIQH)

2019 ◽  
Vol 11 (1) ◽  
pp. 19-68
Author(s):  
Abdul Rasyid Ridho
Keyword(s):  
Legal Status ◽  
Human Needs ◽  
The Law

Maslahah in al-Juwayni's thinking is not a source of law, but it is an indicator in determining the existence of a law. Basically, maslahah which is the basis and purpose of the establishment of sharia, in the view of al-Juwayni, concerns all universal human needs that can guarantee the maintenance and uphold of human life's milestones. This is al-Juwayni's formulation includes four things, namely guaranteed the maintenance of religion, soul, honor (ancestry), and human property. Then in making istinbat a law, especially related to cases that have not been regulated by the legal status, it must refer to the five categories of maslahah as formulated by al-Juwayni. These five categories are the basis and purpose of the making and determination of the law found in the text.

scholarly journals On the Issue of Judges’ Salary as an Element of the Constitutional and Legal Status of Judges

2020 ◽  
Vol 91 (4) ◽  
pp. 27-36
Author(s):  
V. S. Vitkova ◽  
Y. O. Hrabova
Keyword(s):  
Legal Status ◽  
Total Population ◽  
Judicial System ◽  
Constant Number ◽  
The Social ◽  
Judicial Administration ◽  
The Law ◽  
Basic Salary ◽  
The City

The article focuses on the use of the categories of «permanent population» and «existing population» while applying the regional coefficients in determining the basic amount of salary of a judge, since the judge’s salary guarantees the independence of the judge and is an integral part of his constitutional legal status. Attention is drawn to the fact that, since the judge’s salary can be determined only by the Law of Ukraine «On Judicial System and Status of Judges» the issue of the uniqueness of the application of regional coefficients requires an additional focus of scholars and practitioners, which, in turn, is related to the uncertainty of the provisions of paragraphs 2, 3, 4, Part 4 of the Art. 135 of the above mentioned Law. Determination of the regional coefficient for the calculation of the judge’s salary substantiates the feasibility of applying regional coefficients in practice based on the data, in particular, the basic indicators of the effectiveness of the courts of settlements, population of which exceed 1 million and total population of which is less than 100 thousand. Relevant comparative data on the burden on judges of such courts is provided. Based on the obtained empirical data, it is concluded that there are ambiguities in the use of the categories «existing population» and «permanent population» by the State Judicial Administration of Ukraine while approving staffing of courts in the period of 2017-2020 on the example of Odesa City, despite the relatively constant number of permanent and existing population in the city during this period. The necessity to apply the category of «existing population» in determining the basic salary of a judge is argued, as well as the advisability of amending the paragraphs 2-4 of Part 4 of the Art. 135 of the Law of Ukraine «On Judicial System and Status of Judges» in regard to the need for uniform application of this rule in practice and ensuring that the social guarantees of judicial independence are respected.

scholarly journals THE INVESTIGATOR’S INDEPENDENCE: CHALLENGING ASPECTS OF THE DETERMINATION OF THE LEGAL ESSENCE AND FUNCTIONAL PURPOSE

2020 ◽  
Vol 11 ◽  
pp. 19-23
Author(s):  
Denis P. Popov ◽  
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Process ◽  
Professional Activities ◽  
Legal Nature ◽  
The Law ◽  
Functional Purpose

The article examines topical issues relevant to the domestic criminal process related to the determination of the legal nature and functional purpose of the category ≪procedural independence of the investigator≫. Based on the analysis of the theory, criminal procedural legislation and the practice of its application, the author concludes that from the point of view of the legal nature, the independence of the investigator should be considered as a ≪criminal procedure tool≫ provided to him by the law, functionally designed for professional activities. The concept of the category in question is proposed, as well as measures aimed at improving the legislation determining the legal status of the investigator and regulating his procedural independence.

Pembagian Harta Waris dalam Tradisi Masyarakat Muslim di Gorontalo

2019 ◽  
Vol 13 (2) ◽  
pp. 187-202
Author(s):  
Hamid Pongoliu
Keyword(s):  
Islamic Law ◽  
Sharia Law ◽  
The Will ◽  
The Law

Gorontalo has a customary principle derived from sharia law, and the sharia law is sourced from the Qur'an, hadith, ijmak and qiyas (adati-hula'a to syara'a, syara'a hula'a to Kitabi), which should reflect the existence of the implementation of the distribution of inheritance in Islam in the Gorontalo community. This customary principle can be a source of law if it is a rational act, not immorality, done always repeatedly, does not bring harm and does not conflict with the law of sharak. But in reality there is the implementation of inheritance that violates Islamic law, namely the distribution by way of deliberation, the determination of the amount of heirs equally, the delay in the distribution of inheritance, wills with houses given to girls, wills not to distribute inheritance, distribution of assets it depends on the will of the heir and the delay in the distribution of inheritance on the grounds that one of the parents is still alive. The distribution by deliberation and determination of the amount of the portion for each heir are equally acceptable as long as they follow the guidelines of the Compilation of Islamic Law article 183 and the concept of takharruj which was previously preceded by the Shari'a division. After the heirs know the size of the portion, then they may agree to share it in their own way or leave the inheritance according to Shari'a and agree to give to each other with other heirs.

The Dudley Lee Case: A new approach to factual causation and its implications for transformative jurisprudence

2017 ◽  
Vol 30 (1) ◽  
pp. 273-289
Author(s):  
Anmari Meerkotter
Keyword(s):  
Case Note ◽  
Constitutional Court ◽  
Recent Contribution ◽  
New Approach ◽  
State Accountability ◽  
The Law ◽  
Transformative Impact ◽  
Constitutional Jurisprudence ◽  
Law Of Delict

The Constitutional Court (CC) judgment of Lee v Minister of Correction Services 2013 2SA 144 (CC) is a recent contribution to transformative constitutional jurisprudence in the field of the law of delict. This matter turned on the issue of factual causation in the context of wrongful and negligent systemic omissions by the state. In this case note, I explore the law relating to this element of delictual liability with specific regard to the traditional test for factual causation – the conditio sine qua non (‘but-for’) test. In particular, I note the problems occasioned by formalistic adherence to this test in the context of systemic state omissions as evidenced by the SCA judgment in the same matter. I also consider the manner in which English courts have addressed this problem. Thereafter, I analyse the CC’s broader approach to the determination of factual causation as one based on common sense and justice. I argue that this approach endorses a break from a formalistic application of the test and constitutes a step towards an approach which resonates with the foundational constitutional values of freedom, dignity and equality. Furthermore, it presents an appropriate solution to the problems associated with factual causation where systemic omissions are concerned. I then consider the transformative impact of the Lee judgment. In particular, I argue that the broader enquiry favoured by the CC facilitates the realisation of constitutionally guaranteed state accountability, and amounts to an extension of the existing norm of accountability jurisprudence. Hence, I contend that the judgment presents a further effort by the Constitutional Court to effect wholesale the constitutionalisation of the law of delict, as well as a vindicatory tool to be used by litigants who have been adversely affected by systemic state omissions.

Practical Application

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Practical Application ◽  
Temporal Perspective ◽  
Applicable Law ◽  
The Law ◽  
Geographical Scope

This chapter analyses the practical application of the law of belligerent occupation in internationalized armed conflicts in its temporal, geographical, and personal dimensions. Firstly, from a temporal perspective, the law is shown to apply once one of the conflict parties consolidates its control over the enemy territory and substitutes its own authority for that of the displaced enemy. Secondly, the chapter assesses the geographical scope of the applicable law and draws specific guidelines for the determination of the territory subject to the law of occupation in various types of internationalized armed conflicts. Thirdly, the chapter endorses the allegiance-based approach to the designation of protected persons under the law of occupation and applies it to the reality of internationalized armed conflict. Overall, the chapter presents a workable toolkit for the application of the law of occupation to internationalized armed conflicts.

Reverberating the Glas: Towards a Deconstructive Account of Particularity in Hegel's Logic of the Concept

2020 ◽  
pp. 1-28
Author(s):  
Jakub Mácha
Keyword(s):  
Free Play ◽  
Subjective Perspective ◽  
The Law

Abstract Understanding Hegel's account of particularity has proven to be anything but straightforward. Two main accounts of particularity have been advanced: the particular as an example or instance and the particular as a subjective perspective on a universal concept. The problem with these accounts is that they reduce particularity either to singularity or to universality. As Derrida's analyses make apparent, the ‘structure of exemplarity’ in Hegel is quite intricate. Hegel uses ‘example’ in three senses: it means (1) ‘instance’, ‘illustration’, or (2) ‘model’, ‘exemplary individual’, ‘paradigm’, or (3) a by-play (a meaning derived from Hegel's neologism beiherspielen, in which Beispiel is understood quasi-etymologically as a ‘by-play’ of accidental moments). A Beispiel in the first sense can be replaced by another instance in a free play (by-play). This play of accidental moments, however, is not entirely free; it generates a series (of replacements) that ultimately leads to an example in the second sense, to an exemplary individual. I argue that particularity can be taken as exemplarity of this kind, oscillating between a singular example and a universal paradigm. Within this by-play, the universal concept, its law, is supposed to be mediated and determined. However, out of the differences between the examples the by-play induces another law, the law of non-mediation, which may, in Derrida's view, actually negate the dialectical movement towards universality. I argue, utilizing Malabou's concept of plasticity, that this disruption may be recovered. This implies that each individual example within a series is a particular determination of the universal. Hence, we can take literally Hegel's claim that the movement of the concept is play.

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

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