scholarly journals The Doctrine of Clarifications

2021 ◽  
pp. 797
Author(s):  
Pat McDonell
Keyword(s):  
Statutory Interpretation ◽  
Specific Factors ◽  
The Law

Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes the existing doctrine of clarifications as it has been established in the federal circuits and highlights the important implications of their approaches. Second, it argues that clarifications are an important tool for courts and lawmaking bodies. Third, it provides a more intelligible taxonomy for courts to use, including specific factors that ought to guide their determination of whether an amendment clarifies the law.

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.

Firm Characteristics and Total Factor Productivity: Evidence from Indian Manufacturing Firms

2017 ◽  
Vol 11 (1) ◽  
pp. 77-98 ◽  
Author(s):  
Lopamudra D. Satpathy ◽  
Bani Chatterjee ◽  
Jitendra Mahakud
Keyword(s):  
Total Factor Productivity ◽  
Ordinary Least Squares ◽  
Jel Classification ◽  
Raw Material ◽  
Firm Characteristics ◽  
Manufacturing Companies ◽  
Factor Productivity ◽  
Size Of Firms ◽  
Specific Factors

Measurement of the productivity of firms is an important research issue in productivity literature. Over the years, various methods have been developed to measure firm productivity across the globe. But there is no unanimity on the use of methods, and research on the identification of factors which determine productivity has been neglected. In view of these gaps, this study aims to measure total factor productivity (TFP) and tries to identify firm-specific factors which determine productivity of Indian manufacturing companies. The study is based on data of 616 firms from 1998–99 to 2012–13. To measure TFP, the Levinsohn–Petrin (L-P) method has been employed, and the fully modified ordinary least squares (FMOLS) method has been used to identify factors that affect TFP. The results reveal that embodied and disembodied technology plays a crucial role in the determination of productivity overall in manufacturing and other sub-industries. Similarly, the size of firms and intensity of raw material imports are also important for the determination of productivity across the sub-industries. JEL Classification: C14, C33, D24, L60

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.

Determination of the Success and Failure of Root-Form Osseointegrated Dental Implants

1999 ◽  
Vol 13 (1) ◽  
pp. 173-180 ◽  
Author(s):  
Maurizio S. Tonetti
Keyword(s):  
Dental Implants ◽  
Clinical Presentation ◽  
Risk Groups ◽  
Risk Indicators ◽  
Clinical Syndromes ◽  
Specific Factors ◽  
Pathological Material ◽  
Implanted Device ◽  
Increased Susceptibility

Permucosal osseointegrated dental implants are a highly effective and predictable treatment modality for edentulism. This review discusses some controversial aspects of the definitions for success and failure of root-form dental implants. The discussion will focus on the underlying pathologies that, if untreated, may lead to loss of the implanted device. Few clinical syndromes are described based on human pathological material and clinical presentation. The theoretical chronological relationship between implant loss and the incidence of pathology of the soft- and hard-tissue seal around implants is also discussed. The review also examines the finding that implant failures are not randomly distributed in the treated populations and that implant loss clusters in specific high-risk groups and individuals. Known risk indicators, and possible risk factors, are discussed, taking into account the patient, the reconstruction, the implant, and implant site-specific factors. Particular emphasis is placed on the need for better determination of whether periodontal patients are at higher risk for implant failures as a consequence of their increased susceptibility to infectious, inflammatory-response-driven tissue breakdown.

Determining a Suicide under Australian Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Stephanie Jowett ◽  
Belinda Carpenter ◽  
Gordon Tait
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Practical Matter ◽  
The Law ◽  
Recent Government

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

scholarly journals PERUBAHAN SOSIAL DAN PEMBARUAN HUKUM ISLAM PERSPEKTIF SADD AL-DZARI’AH

2015 ◽  
Vol 15 (2) ◽  
pp. 101
Author(s):  
Gibtiah Gibtiah ◽  
Yusida Fitriati
Keyword(s):  
Social Change ◽  
Human Nature ◽  
Social Life ◽  
Islamic Law ◽  
Method Of Determination ◽  
Constant Change ◽  
The Law

<p>Abstract: Social life is one of human nature that has innate.<br />One characteristic of social life is the constant change in the<br />community. There is no society ever stop at a certain point of all<br />time, but constantly changing and moving forward. Changes<br />that occur sooner or later be able to change the joints staple of<br />people's lives. This paper explores social change and renewal of<br />Islamic law by using the method of determination of the law<br />“sadd al dzari’ah”.</p><p><br />ملخص: الحیاة الاجتماعیة ھي واحدة من طبیعة الإنسان الذي لدیھ الفطریة . واحدة<br />من سمات الحیاة الاجتماعیة ھي التغییر المستمر في المجتمع. لا یوجد أي مجتمع<br />تتوقف أبدا عند نقطة معینة في كل العصور، ولكن تتغیر باستمرار، و تتحرك إلى الأمام<br />. التغیرات التي تحدث عاجلا أو آجلا تكون قادرة على تغییر الأساسیة مفاصل حیاة<br />الناس. وتبحث ھذه الورقة التغییر الاجتماعي والتجدید في الشریعة الإسلامیة باستخدام<br />طریقة تحدید القانون.</p><p>Kata kunci : metode penggalian hukum, sadd al-dzari’ah</p>

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