scholarly journals Essay: Family Law and Civil Union Partnerships - Status, Contract and Access to Symbols

2006 ◽  
Vol 37 (2) ◽  
pp. 183
Author(s):  
Graeme W Austin
Keyword(s):  
New Zealand ◽  
Family Law ◽  
The State ◽  
Legal Issues ◽  
Civil Union ◽  
Modern Family ◽  
Contractual Relations ◽  
The Law ◽  
Positive Step ◽  
The Way

This essay locates New Zealand's civil union legislation within the dynamic between "status" and "contract" that animates modern family law. "Status" concerns who we are; "contract" concerns the transactions we can enter. Because family law is concerned with affective relationships, it cannot apprehend people only as the atomised individuals anticipated by the modernist emphasis on contractual relations. Family law acknowledges the relevance to legal issues of "messy" issues of personality. Among the most complex and powerful aspects of personality with which the law concerns itself is love. Love affects who we are and law affects what love can be. Law provides and constrains the symbolic repertoire that helps organise the way we think about our affective relationships.  The enactment of civil union legislation was an enormously positive step.  However, by continuing to deny homosexuals the ability to marry, the New Zealand state persists in denying homosexuals a key part of the symbolic repertoire that is relevant to the way people in love can conceptualise their relationships. The transactions the state permits us to enter, particularly transactions that are expressions of love, affect the construction of our identities, illustrating once again the deep links that exist between who we are and the contracts we can enter.

Constitutional Rights and Social Welfare: Exploring Claims-Making Practices in Post-Apartheid South Africa

2020 ◽  
Vol 53 (1) ◽  
pp. 25-48
Author(s):  
Whitney K. Taylor
Keyword(s):  
South Africa ◽  
Social Welfare ◽  
Neighborhood Context ◽  
The State ◽  
Constitutional Rights ◽  
The Law ◽  
Material Conditions ◽  
Do So ◽  
The Way

When do individuals choose to advance legal claims to social welfare goods? To explore this question, I turn to the case of South Africa, where, despite the adoption of a "transformative" constitution in 1996, access to social welfare goods remains sorely lacking. Drawing on an original 551-person survey, I examine patterns of legal claims-making, focusing on beliefs individuals hold about the law, rights, and the state, and how those beliefs relate to decisions about whether and how to make claims. I find striking differences between the factors that influence when people say they should file a legal claim and when they actually do so. The way that individuals interpret their own material conditions and neighborhood context are important, yet under-acknowledged, factors for explaining claims-making.

Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

2021 ◽  
pp. 297-302
Author(s):  
Marc Galanter
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Change ◽  
System P ◽  
The Law ◽  
Over Time ◽  
Do So ◽  
The Way

This article proposes some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system as a means of redistributive change. Specifically, the question is under what conditions litigation can be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts. Because of differences in their size, differences in the state of the law, and differences in their resources, some of the actors in society have many occasions to utilize the courts; others do so only rarely. One can divide these actors into those claimants who have only occasional recourse to the courts (one-shotters) and repeat players who are engaged in many similar litigations over time. The article then looks at alternatives to the official litigation system.

German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse

2006 ◽  
Vol 7 (5) ◽  
pp. 453-477 ◽  
Author(s):  
András Jakab
Keyword(s):  
Constitutional Law ◽  
Current Issue ◽  
German Literature ◽  
Legal Discourse ◽  
The State ◽  
Legal Issues ◽  
State Of Emergency ◽  
The Law ◽  
German Constitutional Law ◽  
Academic Debate

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.

scholarly journals A Greve e seus sentidos político e jurídico / Strike and its political and Legal senses

2019 ◽  
Vol 47 (1) ◽  
pp. 252-268
Author(s):  
Felipe Cesar Rebêlo
Keyword(s):  
Social Action ◽  
Class Struggle ◽  
Institutional Structure ◽  
The State ◽  
Social Rights ◽  
Political Aspect ◽  
The Social ◽  
The Law ◽  
The Way

A greve é reconhecida como um instituto em constante evolução, representativo dos direitos sociais. Passa por uma evolução constante, de acordo com as demandas que surgem historicamente. Nesse ponto, se averigua como o instituto jurídico é construído, bem como a forma que sua feição política pode desenvolver. A compreensão da doutrina e da jurisprudência se faz necessária, em consonância as determinações legais, bem como ao espírito social que move multidões, em expressão de uma ação social que necessita ser revisitada considerando cânones mais profundos, e do próprio direito e da constituição do Estado, como forma de legitimação da estrutura institucional em que a sociedade pode se formatar. A forma de concretização das demandas sociais, à luz de uma preocupação que se compactue com a luta de classes no ambiente capitalista, em que o direito é analisado como instrumentalização dessa constante social, merece ponderação na análise contemplada.   Abstract: Strike is recognized as a constantly evolving institute, representative of social rights. It goes through a constant evolution, according to the demands that arise historically. At this point, it examines how the legal institute is constructed, as well as the form that its political aspect can develop. Understanding the doctrine and jurisprudence is necessary, in accordance with legal determinations, as well as the social spirit that moves crowds, in expression of a social action that needs to be revisited considering deeper canons, and of the law itself and the constitution of the State, as a way of legitimizing institutional structure in which society can be shaped. The way of concretizing social demands, in the light of a concern that is compacted with the class struggle in the capitalist environment, in which the law is analyzed as an instrumentalization of this social constant, deserves consideration in the analysis.

scholarly journals A millstone around the neck? Stereotypes about wives and myths about divorce

2019 ◽  
Vol 70 (2) ◽  
pp. 181-201
Author(s):  
Sharon Thompson
Keyword(s):  
Family Law ◽  
Current Policy ◽  
Private Ordering ◽  
Substantive Equality ◽  
Judicial Reasoning ◽  
The Law ◽  
Existent Problem ◽  
Gendered Stereotypes ◽  
The Way

This article examines the effect of and connection between stereotypes about wives and myths about financial provision on divorce. It is based on an assessment of press reports on Mills v Mills which have fuelled calls for reform of the law of financial provision on divorce, most notably the Divorce (Financial Provision) Bill 2017–2019. It argues that gendered stereotypes about wives (such as ‘alimony drone’, ‘gold-digger’ and ‘meal ticket for life’) inhibit shifts towards substantive equality for women. These gendered stereotypes have not only framed the debate, creating a non-existent problem for reform proposals to solve, but have also affected the way in which individuals form family law agreements, which is important given the current policy emphasis on private ordering. The article concludes by proposing that reflexive engagement with stereotypes about wives should be an important part of judicial reasoning.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

scholarly journals Third-party funding: The effect of the growing third-party funding industry in international arbitration on New Zealand

2021 ◽  
Author(s):  
◽  
Eva Boolieris
Keyword(s):  
New Zealand ◽  
The State ◽  
Third Party ◽  
International Arbitration ◽  
The Law ◽  
Partnership Agreement ◽  
Party Funding

<p>The quickly rising trend of third-party funding in international arbitration is an extremely novel and complex challenge for the international arbitration community. Third-party funding has a long history in the law of litigation funding but this new trend will require the international arbitration community to grapple with this concept in a new setting. As domestic countries have taken hugely varying approaches to third-party funding in a litigation context, the international arbitration community has a wealth of choice available to it in deciding how to approach this trend. There are many outstanding issues in this area and there is much speculation as to how these issues will be resolved. New Zealand will be affected by the choices that the international arbitration community makes in this regard when New Zealand engages in international arbitration. The possibility of the Trans-Pacific Partnership Agreement (TPPA) coming into force is also likely to exacerbate some of the effects of the choices made on the state of New Zealand in investor-state arbitration.</p>

scholarly journals Juridical Analysis of Legal Aid Implementation for Underprivileged Communities: Problems and Challenges

2021 ◽  
Vol 3 (4) ◽  
pp. 481-498
Author(s):  
Alycia Sandra Dinar Andhini
Keyword(s):  
Empirical Research ◽  
Legal Culture ◽  
The State ◽  
Legal Issues ◽  
Access To Justice ◽  
Legal Assistance ◽  
Legal Aid ◽  
The Poor ◽  
The Law ◽  
Gain Access

Legal Aid is organized to help resolve legal issues faced by Legal Aid Recipients. The birth of Law No. 16 of 2011 concerning Legal Aid provides new hope for the poor to gain access to justice and equality before the law. This writing aims to determine the implementation of the provision of legal aid and the obstacles that influence it in its implementation because sometimes the implementation of Law Number 16 of 2011 concerning Legal Aid in Indonesian Courts is not optimal. This research focuses on the application of legal aid to the poor, the challenges and problems they face. The method used in this research is empirical research. This study found that in the application of legal aid in several regions in Indonesia, the main problem faced in addition to the lack of availability of accredited legal aid institutions, was also the issue of the budget provided by the state. In addition, in terms of the legal culture of the community, the implementation of legal aid is not optimal due to the understanding of the community not to have anything to do with the law so that many cases that should receive legal assistance cannot be accompanied.  

scholarly journals Judicial Specialisation in a Generalist Jurisdiction: Is Commercial Specialisation Within the High Court Justified?

2015 ◽  
Vol 46 (2) ◽  
pp. 307
Author(s):  
William Steel
Keyword(s):  
New Zealand ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Common Law ◽  
Future Research ◽  
High Court ◽  
The Law ◽  
The Government ◽  
Law Commission ◽  
The Way

In November 2013, after a series of Law Commission reports and years of academic, professional and judicial discussion, the Government introduced legislation to Parliament to replace the existing High Court commercial list with a specialist commercial panel. Whilst this panel would bring New Zealand into line with many comparable common law jurisdictions, this article argues that the case for specialisation has not been established. In particular, it notes that there is no publically available evidence to support the claim that the High Court is losing its commercial jurisdiction, or that commercial parties are choosing to resolve their disputes offshore or through alternative dispute resolution. Accordingly, this article argues that future research by the Law Commission, or other research agency, is required before specialisation can be justified. In reaching this conclusion, it also examines the issues that may arise if the Government decides to continue with its proposed reform under cl 18 of the Judicature Modernisation Bill 2013, suggesting changes along the way.

scholarly journals STRENGTHENING PANCASILA AS NATIONAL IDEOLOGY TO IMPLEMENTATE THE BALANCING VALUES TO IMPROVE LAW’S APPLICATION IN INDONESIA

2018 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Muhammad Chairul Huda
Keyword(s):  
The State ◽  
Rational Basis ◽  
Modus Vivendi ◽  
People’S Perception ◽  
National Ideology ◽  
Race Ethnicity ◽  
The Law ◽  
Basic Philosophy ◽  
Law Making ◽  
The Way

People’s perception of Pancasila seems to be on the way back. It reminds us that the acceptance of Pancasila as the national ideology is actually not something taken for granted. For that reason, it is necessary to refresh the Pancasila from aspects of knowledge, understanding and practice of the philosophical values contained in it. Law development must be started from the values of Pancasila, because essentially Pancasila is a milestone of convergence of ideas and thoughts on the basic philosophy of state discussed deeply by the founders of the state. Pancasila becomes a sublime agreement (modus vivendi) which is then established as the foundation of state ideology. In this case, Pancasila becomes the rational basis of assumptions about the law to be established as well as the orientation that shows where the nation and state should be established. Thus, Pancasila is an agreement and consensus to build a nation of one country, without considering the different backgrounds that include religion, race, ethnicity, culture, language and others. As the foundation of the state, Pancasila becomes the rechtsidee that should be written in every law-making and enforcement.

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