scholarly journals Ausencia y desaparición en el derecho (Absence and disappearance in law)

2019 ◽  
Vol 9 (2) ◽  
pp. 198-208 ◽  
Author(s):  
Ramón Sáez Valcárcel
Keyword(s):  
Public Space ◽  
Public Policies ◽  
The State ◽  
Private Law ◽  
Undocumented Migrant ◽  
Public And Private ◽  
The Law

La desaparición forzada es consecuencia de prácticas ilegales y clandestinas acometidas por poderes punitivos desbocados, pero también la desaparición social es efecto de políticas públicas en las que el derecho interviene. En este texto indagamos cómo la ley produce ausencia y desaparición en el ámbito del derecho público y del derecho privado, con especial interés en los mecanismos que utiliza para gestionar tales situaciones, entre la representación, legal o voluntaria, y la excepción. El refugiado, el migrante indocumentado, el enemigo, son ejemplos paradigmáticos de los procesos y los dispositivos mediante los que el derecho invisibiliza y aparta ciertas subjetividades, no solo fuera del espacio público sino también de la protección del Estado, desplaza y sustituye a personas e individuos a quienes va a representar y por quienes van otros a actuar. Forced disappearance is the consequence of illegal and clandestine practices committed by out of control punitive powers, but social disappearance is also the effect of public policies where the law intervenes. In this text we inquire how the law produces absence and disappearance in the field of public and private law, looking specifically on the mechanism the law uses to manage those situations between representation, legal or voluntary, and exception. The refugee, the undocumented migrant, the enemy, are paradigmatic examples in the processes and in the dispositifs through which law invisibilizes and removes some subjectivities, not only outside of public space, but also of the protection of the State; it replaces and substitutes persons and individuals that the State is going to represent and in the name of whom others are going to act.

scholarly journals Public Interest in Private Law Relations of Transition Democracies: A Modern View from the Standpoint of a Systemic Approach

2020 ◽  
Vol 10 ◽  
pp. 430-439
Author(s):  
Iryna E. Berestova ◽  
◽  
Olha V. Verenkiotova ◽  
Natalii Serbina ◽  
Svitlana V. Seminoh
Keyword(s):  
Public Interest ◽  
Large Scale ◽  
The State ◽  
General Nature ◽  
Soviet Society ◽  
Private Law ◽  
Public Interests ◽  
Public And Private ◽  
Private And Public ◽  
The Law

The study investigates the legal nature of the category of "public interest" in private law relations from the standpoint of a systematic scientific approach to law in the countries of post-Soviet society in the modern period. The study states the affiliation of public and private law to the means of achieving the purpose of the law: the recognition of a person, their rights and freedoms as the highest social value of the state. The unsuitability of the theory of the branch belonging to public law has been proved using the universal criterion of separation: the use of the category of "public interest" in the development of the subject and method of the branch in private legal relations. It is concluded that the division of law into private and public is inconsistent in terms of their differentiation of the criterion "method of protecting the rights of their participants", which is activated only after the violation of the latter, while subjective law also exists before the violation, during the existence of regulatory legal relations, and it is the subjective law that forms the affiliation to the relevant industry. During the study, signs of public interest as a legal category were formed. In addition, modern features of public interest as a legal category were outlined from the standpoint of a systematic approach: the general nature of public interests; connectedness with large-scale involvement; recognition by the state and the provision of the law; the possibility of their implementation through measures of state power.

Trust the State: the relevance of principles of public law in trust law and practice

2019 ◽  
Vol 25 (8) ◽  
pp. 841-848
Author(s):  
Toby Graham ◽  
Thomas Beasley
Keyword(s):  
Decision Making ◽  
Common Ground ◽  
Public Law ◽  
The State ◽  
Decision Makers ◽  
Private Law ◽  
Public And Private ◽  
Natural Justice ◽  
The Law ◽  
Trust Law

Abstract Lord Walker, in Futter and Pitt v HMRC1, noted that there are “superficial similarities between what the law requires of trustees in their decision-making and what it requires of decision-makers in the field of public law.” We examine these similarities under the following headings: (1) natural justice; (2) the application of Wednesbury unreasonableness to trust law (an area in which there is far more common ground between public and private law than natural justice); and (3) the decision in Braganza v BP Shipping Limited2 and how this has been subsequently applied. We suggest that the similarities go beyond merely superficial and that public law principles are having an inexorable impact on trust law and practice.

scholarly journals Virtual Origins of Public Law

Lex Russica ◽  
2021 ◽  
pp. 9-22
Author(s):  
I. A. Isaev
Keyword(s):  
Public Space ◽  
Legal Regulation ◽  
Public Law ◽  
The State ◽  
The Political ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Political Landscapes ◽  
Private Individual

The paper analyzes the main processes that gave rise to such a phenomenon as “public law”. The problem of public law is one of the fundamental problems of jurisprudence. A classical dichotomy of public and private law will never lose its significance, and the search for their harmonious interaction only heightens the interest of thinkers around the world in this issue. We should agree that addressing such issues is always secondto-none, as it gives grounds for the development of the best legal regulation acceptable for a particular society. The very notion of “publicness” has gone a long way to finally gaining a foothold in the political and legal lexicon. In the Digestas of Justinian, the famous Roman jurist Ulpian writes: “Public law, which (refers) to the position of the Roman state, private law, which (refers) to the benefit of individuals; there is the useful for the society and the useful for a private individual. Public law includes the sacreds (sacra), the ministry of priests, the position of magistrates” (D.1.1.1.2). Thus, from the ancient Roman forum through medieval corporations to the political parties of modern times, the public space was certainly controlled by the state in some way or another. It was the intervention of the state in the private sphere that determined the nature of “public” in general and public law in particular. These processes have defined both modern political landscapes and the system of public legal institutions. Although, to a large extent, the motivations that affected the formation of public law were dogmatic, formal and virtual, or imaginary in nature, their influence adopted quite real features and led to practical political and legal consequences.

Yelling ‘Fire’ in a Crowded Occupation: Cynical Fire Hazard Claims and the Technocratic Containment of Dissent

2019 ◽  
Vol 29 (4) ◽  
pp. 549-573
Author(s):  
Honor Brabazon
Keyword(s):  
Public Space ◽  
Social Relations ◽  
Public Interest ◽  
Fire Hazard ◽  
Research Literature ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Private And Public ◽  
The Uk

While the privatisation of public space has been the subject of considerable research, literature exploring the shifting boundaries between public and private law, and the role of those shifts in the expansion of neo-liberal social relations, has been slower to develop. This article explores the use of fire safety regulations to evict political occupations in the context of these shifts. Two examples from the UK student occupation movement and two from the US Occupy movement demonstrate how discourses and logics of both private and public law are mobilised through fire hazard claims to create the potent image of a neutral containment of dissent on technical grounds in the public interest – an image that proves difficult to contest. However, the recourse to the public interest and to expert opinion that underpins fire hazard claims is inconsistent with principles governing the limited neo-liberal political sphere, which underscores the pragmatic and continually negotiated implementation of neo-liberal ideas. The article sheds light on the complexity of the extending reach of private law, on the resilience of the public sphere and on the significance of occupations as a battleground on which struggles over neo-liberal social relations and subjectivities play out.

Applicability of Private Law of De-facto Regimes

2019 ◽  
Vol 65 (2) ◽  
pp. 207-222
Author(s):  
Hanna Stakhyra
Keyword(s):  
The State ◽  
The Political ◽  
Private Law ◽  
The Law ◽  
Conflict Of Law

The applicability of private law of de-facto regimes poses particular conflict-of-law challenges for the state and its respective authorities involved, in particular courts. This article analyses these challenges in the light of the Luhansk and Donetsk National Republics in Ukraine, and further illustrates problems arising from the (non-)recognition of de facto regimes in the context of other territories such as Taiwan and Moldova, and Crimea, among others. The article concludes that recognized states cannot simply ignore the existence of a de facto regime territory. The political nonrecognition of such territories should not be an obstacle to the application of the law to protect the rights of individuals in private relationships.

Intimacy and exposure – the Armenian “tun” and Yerevan’s public space

2015 ◽  
Vol 35 (7/8) ◽  
pp. 513-532 ◽  
Author(s):  
Susanne Helma Christiane Fehlings
Keyword(s):  
Public Space ◽  
Cultural Values ◽  
Social Relations ◽  
City Planning ◽  
Cultural Anthropology ◽  
The State ◽  
Data Set ◽  
Public And Private ◽  
Content Type ◽  
The Public

Purpose – In contrast to the dominant accounts in post-Soviet studies that see public and private as two spheres existing in parallel, the purpose of this paper is to argue that in Armenia the public-private dichotomy can be better understood as a spectrum of different kinds of interactions between the state and private actors/social groups representing different sets of socio-cultural values, which are mirrored in Yerevan’s city planning and housing. Design/methodology/approach – The data derives from long-term ethnographic fieldwork in Yerevan. To analyse the data set the author used methods common in social and cultural anthropology. The theoretical background derives from urban anthropology (Liu), theories on housing (Carsten and Hugh-Jones), the anthropology of values (Dumont), and the anthropology of states (Herzfeld) linked to the debate on modernity. Findings – The author demonstrates that basic cultural concepts, norms, expectations, rules, beliefs, and values currently take effect on both sides (public and private/state and people), and that personal networks in Armenia are no longer used to trick an alien state, but also used by the state elites to gain advantage. The degree of intimacy of social relations thereby structures urban space and behaviour. Originality/value – The paper looks at the public-private dichotomy in post-Soviet states from a new perspective, which is inspired by the anthropology of (socio-cultural) values, and argues that cultural intimacy (Herzfeld) is – simultaneously – a unifying and a separating fact in the relationship of states and people.

scholarly journals La notion de protection du public dans la réforme du droit professionnel québécois : une analyse socio-politique

2005 ◽  
Vol 21 (3-4) ◽  
pp. 673-698
Author(s):  
Jean-Guy Belley
Keyword(s):  
Public Policies ◽  
Chicago School ◽  
Professional Services ◽  
Professional Service ◽  
Upper Class ◽  
Private Law ◽  
Public Intervention ◽  
Clear Tendency ◽  
The Future ◽  
The Law

This paper analyses the reform of the law governing professional occupations in Quebec from a socio-political standpoint. By focusing on the ideological level, the reform is seen as the result of the interaction of five competing ideologies : corporatism traditionnally dominant in the professional laws, technocratism that asserted itself in the context of the Revolution tranquille and gave its first impulse to the reform, neoclassic liberalism as expressed in the works of the Chicago School economists, communitarian ideology inspiring the practices of community-centered services among popular groups and consumerism advocating the interests of middle and upper class consumers. In conclusion, it appears that the Code des professions enacted in 1973 proceeded from a compromise between corporatism and technocratism which turned largely to the advantage of the former. But the next step could be quite different. As a matter of fact, the recent positions expressed by the Office des professions du Québec reveal a clear tendency to rely upon consumerism and more fundamentally upon liberalism to carry on the reform. If so, the private law perspective based on a new contract of professional service would become more determinative than articulated public policies in the future regulation of the professional services industry. Bu obtaining a significant reduction of traditional corporatist powers — particularly the price-fixing one — while preventing a more pronounced public intervention, liberal forces would be the ultimate beneficiaries of the reform.

scholarly journals Minorities, Territories and the Law of Ownership. Back to Basics and the Way Forward

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Francesco Palermo
Keyword(s):  
International Law ◽  
Minority Group ◽  
Public Law ◽  
The State ◽  
Nation State ◽  
Private Law ◽  
Limited Role ◽  
The Law ◽  
Point Of Reference ◽  
The Way

In public law, the concept of property plays, arguably, a much more limited role than in private law. At a closer look, however, a rather different picture emerges. In fact, in public (national and international) law, property is less (if at all) regulated, but not less important than in private law. Rather, it is implicitly assumed and developed in collective rather than individual terms. Especially in the nation state construct, territory is the property of a state and the state is the property of a group of people (the dominant nation), whose power to control a territory is called sovereignty. For this reason, when the question emerges of how to deal with a territory predominantly inhabited by a minority group, the answers by different actors involved might be diametrically opposite. This is essentially because the link between people and territory is always framed in terms of ownership: who “owns” a territory? And how to deal with those who inhabit the territory without (being seen as those) owing it? This essay explores the responses to such questions. The focus will be on challenges posed by autonomy regimes as instruments for the accommodation of minority issues, including the evolving concept of territory. Against this background, the different understandings of the link and the recent practice of selected international bodies will be analysed, leading to some concluding remarks. It will be argued that territory is an unavoidable point of reference, but many aspects are not sufficiently addressed, such as the issue of the addressees of such arrangements, the evolution that minority-related concepts are facing in the present era, marked by the challenge of diversity and the overall understanding of territorial arrangements.

scholarly journals Public space without the public: State and individuals in courtyard space in Dashilar, Beijing

2021 ◽  
pp. 2057150X2110273
Author(s):  
Alin Li
Keyword(s):  
Public Space ◽  
Urban Space ◽  
Social Life ◽  
Public Life ◽  
Public Spaces ◽  
The State ◽  
Social Significance ◽  
Public And Private ◽  
The Public ◽  
The Individual

This article discusses the meaning of public space and the problem of public reconstruction by means of sociological intervention through an experimental study of community formation and courtyard space rearrangement in the old neighborhood of Dashilar in Beijing. In the West, scholars regard public space as part of public life with political or social significance. In the courtyards of Dashilar, however, residents understand public space as important as a shared property of neighboring families that is separate from public life, as they are often acquainted with but alienated from one another. To grasp this different understanding of public space, this article first looks into the historical transformation of property rights in Dashilar. The courtyards in Dashilar have clearly been defined as state-owned urban space since the 1980s but have remained neglected in administration. Therefore, residents gradually encroached upon these courtyards that were owned by the state and divided them for private use. As this act of encroaching was rooted in the relationship between the state and the individual, the courtyards were not merely changed into privatized properties with specific functions, but became places for interactions between various actors. To reveal the complexity of these courtyards as public spaces, we discuss the expansion of private space by individuals in their daily life and the “public disturbances” initiated by temporary coalitions in space construction. This complexity of courtyards as public spaces can be well illustrated by two experiments of space rearrangement conducted in Dashilar. Both experiments introduced strong social interventions into space rearrangement: one attempted to rebuild social life in a courtyard, and the other worked on the public and private boundaries in a courtyard. The former experiment ended in failure while the latter was a success. The results of these two experiments tell us that public reconstruction is not just about rebuilding social interactions between people, but also about adjusting the state–individual relationship and establishing the rules of living together in public space.

scholarly journals The procedural component of legal liability

2018 ◽  
Vol 83 (4) ◽  
pp. 11-18
Author(s):  
L. I. Kalenichenko ◽  
D. V. Slynko
Keyword(s):  
Law Enforcement ◽  
Legal Liability ◽  
Public Law ◽  
The State ◽  
State Agencies ◽  
Private Law ◽  
Procedural Law ◽  
The Law ◽  
Lawful Conduct ◽  
Procedural Basis

The procedural component of legal liability has been determined and analyzed. It has been proved that, first, legal liability arises only if there are necessary grounds, including the procedural basis; and secondly, the procedure for bringing to legal liability is determined by the norms of procedural law; thirdly, legal liability is implemented through the law-enforcement activities of the state. It has been substantiated that the fact of the possibility to bring the relevant subject to liability (in private relations) with the help of state agencies affects the awareness of the subject of liability and induces him to voluntarily “take and bear” legal liability. Private liability is realized indirectly through the law-enforcement activity of the state and forms the marginal type of lawful conduct. Attention has been paid to the fact that, unlike public law branches, it is sometimes sufficient to have two grounds (regulatory and factual) in private law branches to bring to justice and to induce legal liability. It has been emphasized that the process of the realization of liability in private law differs from the process of its implementation in public law. However, bringing to liability both in public and in private law is regulated by procedural norms and is implemented within the framework of procedural relations that serve as a form of relations of legal liability.

Sign in / Sign up

Export Citation Format

Share Document