scholarly journals Non-Positivist ‘Higher Norms’ and ‘Formal’ Positivism: Interpretation of the Ethiopian Criminal Law

2020 ◽  
Vol 14 (1) ◽  
pp. 85-118
Author(s):  
Simeneh Kiros Assefa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Criminal Law ◽  
Common Good ◽  
Legal Theory ◽  
Fundamental Rights ◽  
The Common Good ◽  
The Supreme Court ◽  
The Common

The criminal law is adopted as a means of achieving the common good; it is interpreted and applied by the court. The judge chooses the type of legal theory and method to employ in the interpretation and application of the criminal law. Such theories may be acquired from higher norms or from the decision of the Supreme Court. Because such choice of theory and method determines the outcome of the case, the judge is also expected to be guided by the doctrines in criminal law inspired by the values of rule of law and respect for fundamental rights, enshrined in the Constitution. This article examines how courts harmonise the application of the positive criminal law with the non-positivist theories of higher norms. After reviewing various criminal rules and their judicial application, it finds that the court applies the criminal law as it is written in disregard of the non-positivist theories of higher norms, at times in contradiction to the basic doctrines of the criminal law itself.

scholarly journals Valores jurídicos en la Regulación Penal de la Competencia Desleal en Ecuador

2021 ◽  
Vol 39 (69) ◽  
pp. 21-41
Author(s):  
Jorge Núñez Grijalva
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Good ◽  
The State ◽  
Unfair Competition ◽  
Real Problem ◽  
Apparent Absence ◽  
The Common Good ◽  
The Common ◽  
Legal Security

In all areas of the legal world there are higher aspirations, which represent legal values to be protected, like the justice, the common good and legal security stand out. The present work was proposed to analyze if the Ecuadorian Legislator, in its process of construction and promulgation of the criminal law regulating against the unfair competition, incorporated these three values into it. Regrettably, the results show an apparent absence of the three legal values in criminal law, leaving legal operators at a disadvantage in view of the need to control this type of crime and society, awaiting compliance. Through an exercise of legal hermeneutics, the study starts from a real problem in the Ecuadorian legal system of the criminal law against of the unfair competition, which demands to be discussed in the search for the State to take the necessary measures to solve this problem.

scholarly journals O BEM COMUM COMO VALOR E O ACESSO À JUSTIÇA COMO COMPROMISSO: IMPLICAÇÕES SOBRE O PROCESSO CIVIL

2020 ◽  
Vol 1 (58) ◽  
pp. 410
Author(s):  
Janaína Machado STURZA ◽  
Karinne Emanoela Goettems dos SANTOS
Keyword(s):  
Social Life ◽  
Common Good ◽  
Transformation Process ◽  
Fundamental Rights ◽  
Access To Justice ◽  
The Common Good ◽  
Civil Process ◽  
The Common ◽  
Pass Through ◽  
Judicial Procedures

RESUMO Objetivo: Este estudo tem como objetivo fomentar a reflexão sobre o atual cenário de conflitos sociais, no qual se encontra a sociedade contemporânea, destacando a importância do acesso à Justiça por meio de um processo civil constitucionalmente adequado, na perspectiva do bem comum. Metodologia: A pesquisa converge para a importância da adaptação dos procedimentos judiciais à realidade social, por meio de um estudo bibliográfico norteado pelo método hipotético dedutivo, apresentando a hermenêutica filosófica gadameriana e as perspectivas de Mauro Cappelletti como principais referenciais teóricos. Resultados: Entender a sociedade a partir de um contexto conflituoso implica assumir uma nova postura diante da complexidade social e da efetivação do necessário processo de transformação na perspectiva de bem comum e, essencialmente, de acesso à Justiça como compromisso. Na órbita do processo civil, esse compromisso torna-se ainda mais evidente com a superveniência do novo Código de Processo. Contribuições: A demonstração de que a efetividade dos direitos fundamentais e a consagração da cidadania perpassam necessariamente por um processo civil constitucionalmente adequado, o qual deve e é capaz de adaptar-se às complexidades da vida social contemporânea.Palavras-chave: bem comum; cidadania; acesso à Justiça; processo constitucionalmente adequado.  ABSTRACT Objective: To encourage reflection on the current scenario of social conflicts in which contemporary society is situated, highlighting the importance of access to Justice by way of a constitutionally adequate civil process in the perspective of the common good. Methodology: The research converges to the importance of adapting judicial procedures to social reality by way of a bibliographic study guided by the hypothetical deductive method, presenting Gadamerian philosophical hermeneutics and the perspectives of Mauro Cappelletti as main theoretical references. Results: To understand the society from a conflictual context implies taking a new stance before social complexity and the implementation of the necessary transformation process in the perspective of the common good and, essentially, access to Justice as a commitment. In the orbit of civil proceedings this commitment becomes even more evident upon the supervenience of the new Code of Procedure.Contributions: The demonstration that the effectiveness of fundamental rights and the implementation of citizenship necessarily pass through a constitutionally adequate civil process, which must and is capable of adapting to the complexities of contemporary social life. Keywords: Common good; citizenship; access to Justice; appropriate constitutional process.

Epilogue

2018 ◽  
pp. 353-366
Author(s):  
Marcelo Sánchez Sorondo
Keyword(s):  
Social Life ◽  
Common Good ◽  
Private Property ◽  
Fundamental Rights ◽  
The Common Good ◽  
Housing Security ◽  
The Face ◽  
The Common ◽  
Education And Employment ◽  
National Borders

Migration is a shared condition of all humanity. We have all been strangers in a strange land. All humanity lives today as a result of migration, by themselves or their ancestors. Migration is a matter sometimes of choice, often of need, and always an inalienable right. All helpless people deserve to be helped. Offering such help is a commandment and a blessing shared among all religions. Accordingly, as Pope Francis reminds us, our duties to migrants include “to welcome”, “to protect”, “to promote”, and “to integrate.” National borders are not a result of primary natural law, as aren’t private property and clothes, “because nature did not give [humans] clothes, but art invented them”. National borders depend on social, political and geographical factors. Therefore, faced with current waves of mass migration, in order to establish practices that respond to the common good we need to be guided by three levels of responsibility. The first principle being that “in case of need all things are common”, because “every man is my brother”. This principle is relative to existence or subsistence and conditions other related issues (such as accommodation, food, housing, security, etc.). Secondly, as part of the fundamental rights of people, legal guarantees of primary rights that foster an “organic participation” in the economic and social life of the nation. Access to these economic and social goods, including education and employment, will allow people to develop their own abilities. Thirdly, a deeper sense of integration, reflecting responsibilities related to protecting, examining and developing the values that underpin the deep, stable, unity of a society— and, more fundamentally, create a horizon of public peace, understood as St. Augustine’s "tranquility in order". In particular, with regards to the aforementioned context, policies on migration should be guided by prudence, but prudence must never mean exclusion. On the contrary, governments should evaluate, “with wisdom and foresight, the extent to which their country is in a position, without prejudice to the common good of citizens, to offer a decent life to migrants, especially those truly in need of protection. Strangely enough, the response of most governments in the face of this phenomenon only seems to value the third principle, completely disregarding the first two.

‘The Law of Nations Is Common to All Mankind’

2018 ◽  
Author(s):  
Susan Longfield Karr
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Common Good ◽  
Legal Theory ◽  
The Rule Of Law ◽  
Law Of Nations ◽  
The Common ◽  
Fundamental Categories ◽  
Ius Gentium ◽  
Universal Rule

For humanist sixteenth-century jurists such as Guillaume Budé, Ulrich Zasius, Andrea Alciati the ‘rule of law’ was central. In response to the use of law and legal theory to legitimize arbitrary forms of authority, they called for substantive reforms in legal education and practice, which could alleviate the dangers of masking the arbitrary will of rulers with the language of security, utility, and the common good. By focusing on fundamental categories such as ius, natural law, and ius gentium they effectively argued for a universal ‘rule of law’ that could hold political and legal authorities to a higher criterion of justice. In so doing, they redefined fundamental legal categories, ideas, and terms that continue to underpin and structure modern understandings of universal jurisprudence and international law to this day.

The Supreme Court in the 21st Century

Daedalus ◽  
2013 ◽  
Vol 142 (2) ◽  
pp. 36-48
Author(s):  
Geoffrey R. Stone
Keyword(s):  
Health Care ◽  
Supreme Court ◽  
Presidential Election ◽  
Common Good ◽  
Voting Rights ◽  
Gun Control ◽  
The Supreme Court ◽  
Warren Court ◽  
The Common ◽  
Constitutional System

How does the Supreme Court serve the “common good”? What is the Court's responsibility, as the ultimate interpreter of the Constitution, in our constitutional system of government? This essay explores that question with an eye on the recent performance of the Court in highly controversial and divisive cases. What explains the Court's decisions in cases involving such issues as campaign finance regulation, gun control, abortion, affirmative action, health care reform, voting rights, and even the 2000 presidential election? This essay argues that there is a right and a wrong way for the Supreme Court to interpret and apply the Constitution; and whereas the Warren Court properly understood its responsibilities, the Court in more recent decades has adopted a less legitimate and more troubling mode of constitutional interpretation.

scholarly journals Derechos Fundamentales, el Covid-19 y la Afectación de Derechos a los Grupos en Situación de Vulnerabilidad. Los Adultos Mayores

2021 ◽  
Vol 12 (12) ◽  
pp. 73-97
Author(s):  
Gerardo Bernales Rojas ◽  
Lucivania Dias Mendes
Keyword(s):  
Older Adults ◽  
Side Effects ◽  
Common Good ◽  
Fundamental Rights ◽  
Vulnerable Groups ◽  
The Common Good ◽  
Specific Effects ◽  
The Common ◽  
Los Grupos

The pandemic generated by Covid-19, has produced global effects not seen in these times, and not only in health, but in all areas of life, which has led governments to make decisions of all kinds and not only sanitary to reduce the spread of the pandemic and its aftermath. For this, the States use the constitutional tools that allow them to restrict the exercise of some fundamental rights, to achieve their objective. However, these “remedies” cause severe side effects, in the so-called “vulnerable groups”. In this article, we intend to analyze how in Brazil and Chile, the decisions of the authority, although they look to the common good, have the contradiction of particularly affecting the members of these groups, focusing our work on the situation of older adults, given certain specific effects that lie in this segment of society.

scholarly journals The Welfare of Each and Everyone in Russian Legal Theory

2020 ◽  
Author(s):  
Alexey Dmitriyev ◽  
Keyword(s):  
Intellectual History ◽  
Common Good ◽  
Legal Theory ◽  
Public Welfare ◽  
Veil Of Ignorance ◽  
The Public ◽  
The Common Good ◽  
Related Notion ◽  
The Common ◽  
The Veil

The prerequisite for the study was the spread of views in the academic literature that the category of public welfare, without accounting for concretising factors, was a void abstraction, and that in Russia, public welfare was seen as the dominant principle over the individual. The main purpose of the study is to analyse the content of the term ‘the welfare of each and everyone’ in Russian legal theory. The author uses the methods of conceptual history and intellectual history to analyse the concept of ‘the welfare of each and everyone’ in the works of pre-revolutionary authors and the relationship between the concepts of ‘the welfare of each and everyone’ and ‘the common good’. The author determined that: ‘public welfare’ can be classified as fiction, purpose, method, interest and balance, depending on the context of use and semantic scope. The term ‘the welfare of each and every one’ became theoretically meaningful (as an objective, method, and interest), and was enshrined in law in Russian Empire in the XVIII -early XX centuries. The term was understood as achieving the common good, preserving the good of everyone and the reduction of public harm. Twentyfirst century Russian legal theory uses the related notion of ‘public welfare’, understood as a fiction, a goal, a method, an interest, a balance. The main findings of the study suggest that today the ‘public welfare’ is reduced to bringing benefits to anyone and everyone (D. I. Dedov), which is close to the historical understanding of ‘the welfare of each and every one’. The public welfare theory incorporates progressive elements such as the veil of ignorance, the win-win principle, and shapes institutions, resources, practices and formulates the issue of the emergence of a new generation of human rights.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

2021 ◽  
Vol 2021 (2) ◽  
pp. 215-233
Author(s):  
EJ Marais
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Fundamental Rights ◽  
Electricity Supply ◽  
Constitutional Rights ◽  
Single System ◽  
The Supreme Court ◽  
The Common ◽  
The Right ◽  
Court Of Appeal

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

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