scholarly journals The Functions of Principle as the Basis of Court Decision in Hard Cases

Yuridika ◽  
2021 ◽  
Vol 36 (2) ◽  
pp. 383
Author(s):  
Peter Machmudz Marzuki
Keyword(s):  
Legal Rule ◽  
Court Decision ◽  
Moral Principle ◽  
Comparative Approach ◽  
Court Decisions ◽  
Legal Basis ◽  
Statutory Provision ◽  
Court Of Justice ◽  
Just Decisions ◽  
Hard Cases

The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.

scholarly journals Court Decision Contra Legem or an Application of the Principle of Proportionality in Concreto?

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 27-44
Author(s):  
Asta Dambrauskaitė
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Court ◽  
Case Law ◽  
Legal Rule ◽  
Court Decision ◽  
European Convention ◽  
Court Decisions ◽  
Principle Of Proportionality

The article analyses cases of non-application of a national legal rule by cassation court judges hearing civil cases where, based on the analysis of concrete circumstances, the application of such a rule, in the opinion of judges, would lead to an infringement of the principle of proportionality and the European Convention on Human Rights. Decisions of two courts of cassation belonging to the continental law tradition (the Lithuanian Supreme Court and the French Court of Cassation) illustrate such a control of the application of the principle of proportionality in concreto. While national law is subject to an increasing impact of the case law of supranational courts, the legitimacy of such national court decisions is discussed also in the context of the transformations taking place in regard to the role of a judge.

scholarly journals Sexual Violence against Wife Based on Law No. 23 of 2004 Concerning Elimination of Violence in Households and Islamic Law (Analysis of the Decisions of the Bangil, Denpasar and Medan District Courts)

2021 ◽  
Vol 3 (1) ◽  
pp. 124-134
Author(s):  
Masdoki
Keyword(s):  
Qualitative Research ◽  
Sexual Violence ◽  
Islamic Law ◽  
Court Decision ◽  
District Court ◽  
Comparative Approach ◽  
Court Decisions ◽  
District Courts ◽  
Sexual Relations ◽  
Court Judge

This study aims to determine what forms of sexual violence against wives are based on Law no. 23 of 2004 and Islamic Law. To find out what forms of sexual violence against wives in the decision of the Bangil District Court No. 912/Pid/B/2011/PN.Bgl, Denpasar District Court Decision No.89/Pid.Sus/2014/PN.Dps and Medan District Court Decision No.264/Pid.Sus/2018/PN Mdn. To find out what were the basis for the judge's consideration in giving a decision at the Bangil District Court, the Denpasar District Court decision, and the Medan District Court decision regarding sexual violence against wives. Qualitative research was conducted with a revelatory approach, a statute approach, a case approach and a comparative approach. The results of this study indicate that: (1) forms of sexual violence against wives based on Law no. 23 of 2004 and Islamic Law is any act in the form of coercion of sexual relations, in an inappropriate and/or inappropriate manner, forcing sexual relations with other people for commercial purposes and/or for specific purposes. (2) the forms of sexual violence against wives in the decisions of the Bangil District Court, Denpasar District Court decisions and Medan. (3) The consideration of the Bangil District Court judge.

scholarly journals Estudo de comparação institucional para solução de controvérsias para eleições de chefes regionais na Indonésia e no Brasil

2020 ◽  
Vol 9 (11) ◽  
pp. e94091110776
Author(s):  
Taufik Firmanto ◽  
Moh. Fadli ◽  
Muchamad Ali Safaat ◽  
Istislam Istislam
Keyword(s):  
Dispute Resolution ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Research ◽  
Conceptual Approach ◽  
Election Result ◽  
Court Of Justice ◽  
Election Process ◽  
Provincial Capital

This article is a legal research which conducts a comparative study of the dispute resolution institutions between the Indonesian and Brazilian elections. The purpose of writing this article is to map the similarities and differences in the practice of dispute resolution between regional head elections in Indonesia and Brazil to take good aspects that are suitable for implementation in Indonesia. In the discussion, it also covers the practice of organizing elections, election management organs and institutions, including the practice of dispute resolution for Election / Pilkada in both countries. The research method used is normative legal research using primary legal materials in the form of statutory regulations and court decisions, using a comparative approach, a statutory approach and a conceptual approach. Conclusions from the discussion of the research results, the authors propose two institutional options for Pilkada dispute resolution in Indonesia: a) Establishing a special election / election court under the PTUN environment. This Special Judiciary is domiciled in each provincial capital to adjudicate and decide on election result disputes (Election / Pilkada Crime and also examine and adjudicate election / election / election process / administration disputes), or b) Define the authority of the Constitutional Court of Justice to adjudicate disputes over the results of the Pilkada (in addition to PHPU) without any differentiation of regime.

Finally, Our Own Brown! (?)

2012 ◽  
Vol 45 (2) ◽  
pp. 267-289 ◽  
Author(s):  
Yifat Bitton
Keyword(s):  
African American ◽  
Theoretical Analysis ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
High Court ◽  
Court Of Justice ◽  
Us Supreme Court ◽  
Distinctive Group ◽  
Contextual Reality

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

From ‘Don’t Mention the Titanium Dioxide Judgment’ to ‘I Mentioned it Once, But I Think I Got Away with it All Right’: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment

2013 ◽  
Vol 15 ◽  
pp. 537-562
Author(s):  
Geert de Baere
Keyword(s):  
European Union ◽  
Titanium Dioxide ◽  
Case Law ◽  
The European Union ◽  
Legal Basis ◽  
Court Of Justice ◽  
External Relations ◽  
Restrictive Measures

Abstract This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.

Court of Justice Upholds the Tobacco Products Directive 2014

2016 ◽  
Vol 7 (3) ◽  
pp. 623-628
Author(s):  
Katharina Ó Cathaoir
Keyword(s):  
Electronic Cigarettes ◽  
Equal Treatment ◽  
Legal Basis ◽  
Tobacco Products ◽  
Free Competition ◽  
Court Of Justice ◽  
Secretary Of State ◽  
Charter Member ◽  
Philip Morris ◽  
The Eu

C-547/14 Philip Morris Brands SARL and Others v Secretary of State for Health [2016] (not yet reported)C-477/14 Pillbox 38 (UK) Ltd v Secretary of State for Health [2016] (not yet reported)C-358/14 Poland v. Parliament and Council [2016] (not yet reported)Article 114 TFEU provides an adequate legal basis for the adoption of the Tobacco Products Directive 2014 in full, including measures relating to flavoured tobacco, labelling and packaging, and electronic cigarettes. These measures also comply with the principles of proportionality, subsidiarity, legal certainty, equal treatment and free competition, and the rights of companies under the EU Charter. Member States may introduce further requirements in relation to packaging of tobacco products that are not harmonised by the Directive.

Digital platforms under fire: What Australia can learn from recent developments in Europe

2018 ◽  
Vol 43 (4) ◽  
pp. 275-282
Author(s):  
Samson Esayas ◽  
Dan Svantesson
Keyword(s):  
Court Decision ◽  
Final Report ◽  
Court Decisions ◽  
Clear Trend ◽  
Digital Platforms ◽  
Recent Developments ◽  
Selection Of

There is a clear trend of a hardening attitude towards digital platforms. In Australia this trend is exemplified by the Australian Competition and Consumer Commission’s current inquiry specifically into digital platforms. Further, it can also be seen in court decisions. Having discussed one such court decision, we give a brief overview of the Australian Competition and Consumer Commission’s digital platforms inquiry. We then seek to bring attention to a selection of particularly relevant European developments that may usefully inform how Australia proceeds in this arena and that may be considered in the Australian Competition and Consumer Commission’s final report due to be provided to the Treasurer on 3 June 2019.

scholarly journals STUDY OF CONTRACT OBJECT IN MULTI-SERVICE FINANCING USING IJARAH IN ISLAMIC BANK

2021 ◽  
Vol 6 (2) ◽  
pp. 225
Author(s):  
Kamalia Firdausi
Keyword(s):  
Court Decision ◽  
Court Decisions ◽  
Legal Research ◽  
Islamic Bank ◽  
Approach Method

In a case of a dispute between an islamic bank and a customer related to multi-service financing using an ijarah contract at an islamic bank, the customer is suing for the cancellation of the contract on the multi-service financing on the grounds that the object of the contract is not the object of the contract, so the contract should be null and void. However, the court decision stated that he rejected the customer's claim. This research was conducted to examine the application of sharia principles in legal considerations in court decisions regarding contract objects in multi-service financing using the ijarah contract. This research is a normative legal research using the statutory approach method. The results of this study indicate that the legal considerations in court decisions regarding the object of the contract in multi-service financing using the ijarah contract are formally correct, but materially there is still a possibility of gharar that is not in accordance with sharia principles.

scholarly journals Por quem cantam as sereias de Homero e o paradoxo sistêmico da decisão

2018 ◽  
Vol 42 (1) ◽  
pp. 129-144
Author(s):  
Leonel Severo Rocha ◽  
Fernando Tonet Silva
Keyword(s):  
Property Rights ◽  
Systems Theory ◽  
Legal System ◽  
Court Decision ◽  
Complex Cases ◽  
Hard Cases

Resumo: Toda decisão judicial sobre casos difíceis, passa por uma elevada construção interpretativa. Sob um olhar sistêmico, a operatividade do sistema jurídico só pode ser observada se mantida sua integridade, ou seja, por seus próprios códigos. Quando Ulisses busca uma solução para salvar sua vida e de seus grumetes, mantém a estrutura, porém, faz uma decisão através de uma dupla observação: decidir salvar a vida de todos, porém, buscando fundamentos distintos, enquanto uns perdem, momentaneamente, o sentido da audição; Ulisses decide escutar as sereias. A decisão corresponde aos complexos casos, onde mesmo sem o canto das sereias (norma), o caso deve ser resolvido. Nesse sentido, é analisado o acórdão da 7ª Câmara Cível do TJRS, na Apelação nº 70005798004/2003, onde foi discutida a partilha de bens e direitos sucessórios de um genro infiel. O paradoxo apresentado representa o grande santuário da teoria sistêmica e a necessidade de decisão dos Tribunais.   Abstract: Every court decision on hard cases goes through a high interpretive construction. From a systemic perspective, the operability of the legal system can only be observed if maintained their integrity, i.e. their own codes. When Ulysses seeks a solution to save your life and his cabin-cleaning boys, he maintains the structure, however, decides by a double observation: deciding to save everyone’s lives, however, looking for different reasoning basis, while some lose, briefly, their hearing; Ulysses decides to listen to the mermaids. The decision corresponds to the complex cases where even without the mermaid’s singing (norm), the case should be solved. Therefore, the 7th Civil Chamber’s decision in Appeal No. 70005798004/2003, where there has been discussed the sharing of inheritance and property rights of an unfaithful son-in-law, is analyzed. The presented paradox represents the great sanctuary of systems theory and the need for decisions from courts.

Behavioral Economics and Court Decision-Making

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Doron Teichman ◽  
Eyal Zamir
Keyword(s):  
Decision Making ◽  
Economic Analysis ◽  
Behavioral Economics ◽  
Court Decision ◽  
Social Optimum ◽  
Court Decisions ◽  
Heuristics And Biases ◽  
Court System ◽  
Economic Analysis Of Law ◽  
The Social

Abstract The economic analysis of law assumes that court decisions are key to incentivizing people and maximizing social welfare. This article reviews the behavioral literature on court decision making, and highlights numerous heuristics and biases that impact judges and jurors and cause them to make decisions that diverge from the social optimum. In light of this review, the article analyzes some of the institutional features of the court system that may help minimize the costs of biased decisions in the courts.

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