scholarly journals Raportul dintre libertate și interdicție în cazul magistraților

2021 ◽  
Vol 2021 (3) ◽  
pp. 62-82
Author(s):  
Gheorghe-Liviu ZIDARU ◽  
Constantin PINTILIE
Keyword(s):  
General Rule ◽  
Three Solutions ◽  
Disciplinary Procedures ◽  
The Common ◽  
The Law

We are going to analyse three solutions which were adopted by a committee of the Superior Judicial Council (CSM) on the 23rd of November 2021, regarding the incompatibilities and restrictions applicable to magistrates (judges and prosecutors). All three solutions raise the common issues of the (lack of) competence of the Superior Judicial Council to interpret the law outside disciplinary procedures, as well as the manner in which the balance between freedom and restrictions was assessed. Even though the restrictions for magistrates are numerous, freedom is still the general rule and has to be preserved as such. Any incompatibilities and restrictions must be stated in an explicit and limitative manner by the law, and their interpretation must be a restrictive one.

scholarly journals HOW STRICTLY DID THE ATHENIAN COURTS APPLY THE LAW? THE ROLE OF EPIEIKEIA

2013 ◽  
Vol 56 (1) ◽  
pp. 27-48 ◽  
Author(s):  
EDWARD HARRIS
Keyword(s):  
Common Law ◽  
General Rule ◽  
Nicomachean Ethics ◽  
The Common ◽  
The Law ◽  
Principles Of Justice ◽  
The Relationship ◽  
The City ◽  
Positivist Approach

Abstract H. Meyer‐Laurin has claimed that the Athenian courts took a stricti iuris approach to the law and did not take extenuating circumstances into account. Other scholars (Mirhady, Todd) have claimed that the courts sometimes ignored the law and took extra‐legal considerations into account, which was called ‘fairness’ (epieikeia). The essay begins with a careful reading of Aristotle's analysis of ‘fairness’ (epieikeia) in the Nicomachean Ethics and the Rhetoric and draws on an important essay by J. Brunschwig. Fairness was not a doctrine that attempted to undermine the authority of the law or placed the law of the city in opposition to the unwritten laws or the common law of mankind. Nor did the application of fairness introduce non‐legal factors into adjudication. Rather, fairness dealt with the problem of treating exceptions to the general rule contained in a specific written law. The essay then shows how litigants used arguments based on fairness and how the courts sometimes took extenuating circumstances into account. When Athenian judges swore to decide according to the laws of Athens, they did not just consider the law under which the accuser had brought his case. They could also take into account general principles of justice implicit in the laws of Athens as a whole. In this way, they avoided a rigid positivist approach to law. Finally, the essay sheds some light on the relationship between Aristotle's Rhetoric and the arguments used in the Athenian courts.

Duress and the Criminal Law: Another About Turn by the House of Lords

1988 ◽  
Vol 47 (1) ◽  
pp. 61-76 ◽  
Author(s):  
H. P. Milgate
Keyword(s):  
Northern Ireland ◽  
Criminal Law ◽  
Common Law ◽  
General Rule ◽  
The Past ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Second Degree

In the field of criminal law we should be used to the House of Lords changing its mind. In the course of the past three years the House has fundamentally altered its view on the meaning of intention, on the relationship between statutory and common law conspiracy and on the law of impossible attempts. Now we have another about turn. In R. v. Howe and Bannister the House of Lords has unanimously decided that duress can never be a defence to murder. Yet elsewhere in the criminal law (with the exception of some forms of treason) duress operates as a complete defence, leading to acquittal if raised successfully. In making murder an exception to this general rule the House, using its power under the Practice Statement of 1966, has departed from its previous decision in D.P.P. for Northern Ireland v. Lynch which allowed the defence of duress to be raised by principals in the second degree to murder. The Lynch decision, which had stood as part of the common law for some twelve years, is now consigned to the legal scrapheap.

Torts in Private International Law: A New Statutory Framework

1996 ◽  
Vol 45 (4) ◽  
pp. 888-902 ◽  
Author(s):  
C. G. J. Morse
Keyword(s):  
International Law ◽  
Common Law ◽  
General Rule ◽  
Private International Law ◽  
Choice Of Law ◽  
Applicable Law ◽  
The Common ◽  
The Law

Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

The Formal Sufficiency of Foreign Marriages

1976 ◽  
Vol 7 (1) ◽  
pp. 49-65
Author(s):  
J. David Fine
Keyword(s):  
Common Law ◽  
General Rule ◽  
Statutory Provision ◽  
Formal Validity ◽  
The Common ◽  
The Law

It has long been a general rule of common law that a marriage is valid only if formalized in a manner recognised by the law of the place of celebration. This rule is continued in Australian law by explicit statutory provision. In this Article Mr Fine suggests that in Australian Law the category of exceptions to the lex loci celebrationis requirement is significantly wider than in the common law of England. He also finds that in situations outside the scope of the requirement, Australian courts should apply the parties’ domiciliary law to decide formal validity—not the law of the forum, though the latter is used in English courts as the law of second resort.

International Law as Applied by England During the War

1915 ◽  
Vol 9 (2) ◽  
pp. 352-371
Author(s):  
Norman Bentwich
Keyword(s):  
General Rule ◽  
Criminal Court ◽  
Napoleonic Wars ◽  
The Public ◽  
Law Of Nations ◽  
Public Enemy ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Anglo American

One of the immediate consequences of the outbreak of war, according to the Anglo-American law, is that all the commercial relations between subjects of the belligerent countries come to an end. Fresh dealings cannot be entertained, and existing dealings cannot be continued, between persons divided by the line of war, save with the licence of the sovereign power. It is stated in several of the old English books that such trading is a misdemeanor, and even that it amounts to a felony, but there is no reported instance of a conviction by a criminal court. In numerous cases, however, contracts concerned with such trade were declared null, and goods seized when so engaged were confiscated as prize to the Crown. The broad principle was laid down clearly during the Napoleonic wars by Lord Stowell in the case of The Hoop, where a cargo had been captured on a neutral ship on the ground that it was being brought to England from the enemy country by British subjects. There had been some divergence of practice between the prize courts and the common law courts on the question of the absolute illegality of commercial intercourse with the enemy during war, and Stowell then stated the rule which was derived from the Dutch jurist Bynkershoek and which was conceived to be a rule of the law of nations: In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law.—“Ex natura belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsae indictiones bellorum satis declarant, etc.” He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, “prout e re sua subditorumque suorum esse censent principes.” But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quoad hoc. * * * It appears from these passages to be the law of Holland; Valin states it to be the law of France * * * and it may, I think, without rashness be affirmed to have been a general principle of law in most of the countries of Europe. (1 C. Rob. p. 199.)

Marx and the “law of value”: Critical appraisal on the occasion of his 200th birth anniversary

2018 ◽  
pp. 27-49 ◽  
Author(s):  
H. D. Kurz
Keyword(s):  
Karl Marx ◽  
Critical Appraisal ◽  
Critical Discussion ◽  
Use Value ◽  
Transformation Problem ◽  
The Common ◽  
The Law

The paper celebrates Karl Marx’ 200th birthday in terms of a critical discussion of the “law of value” and the idea that “abstract labour”, and not any use value, is the common third of any two commodities that exchange for one another in a given proportion. It is argued that this view is difficult to sustain. It is also the source of the wretched and unnecessary “transformation problem”. Ironically, as Piero Sraffa has shown, prices of production and the general rate of profits are fully determined in terms of the same set of data from which Marx started his analysis.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Contract Formation in Hong Kong

2018 ◽  
Author(s):  
Lusina HO
Keyword(s):  
Hong Kong ◽  
Social Context ◽  
Common Law ◽  
General Rule ◽  
Good Faith ◽  
Local Context ◽  
General Duty ◽  
Contract Formation ◽  
Formal Requirement ◽  
The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

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