Private law and the rule of law

2020 ◽  
pp. 446-461
Author(s):  
Lisa M. Austin
Keyword(s):  
Rule Of Law ◽  
Private Law ◽  
The Rule Of Law

The Rule of Law

2020 ◽  
pp. 512-528
Author(s):  
Lisa M. Austin
Keyword(s):  
Rule Of Law ◽  
First Century ◽  
Private Law ◽  
Critical Pathways ◽  
The Rule Of Law ◽  
Private Power ◽  
The Relationship ◽  
Global Data ◽  
The U.S ◽  
The Way

This chapter argues that the relationship between private law and the rule of law has been underdeveloped, or ignored, by private law scholarship until recently. Indeed, until recently, there has been relatively little attention to what the rule of law, as a conceptual and critical framework, could bring to private law theory itself. Why this lacuna in the literature? The chapter offers two speculative reasons that take up some of the themes and concerns of the New Private Law. The first reason concerns the U.S. legal academy, while the second reason concerns private law theory in the commonwealth. The chapter then outlines potential critical pathways for reclaiming a rule-of-law perspective on private law that address some of the reasons for its underdevelopment. It also explains how a focus on the rule of law in general, and in relation to some of its specific commitments and virtues, provides an important critical lens in relation to understanding and responding to the way that private power operates in the twenty-first century within what can be called the “global data economy.”

Practice of applying international principles in private law relations

2021 ◽  
Vol 28 (4) ◽  
pp. 223-231
Author(s):  
Olga T. Tur ◽  
Marta B. Kravchyk ◽  
Iryna Yu. Nastasiak ◽  
Myroslava M. Sirant ◽  
Nataliya V. Stetsyuk
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Content Specification

National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations

Some Rule-of-Law Anxieties about Strict Liability in Private Law

2019 ◽  
pp. 173-195
Author(s):  
John Gardner
Keyword(s):  
Rule Of Law ◽  
Significant Role ◽  
Strict Liability ◽  
Moral Sense ◽  
Private Law ◽  
Legal Systems ◽  
The Rule Of Law ◽  
The Ideal ◽  
Fault Liability

Strict liability plays a significant role in many legal systems, in both criminal and private law. Its occasional use attracts a weary toleration from legal thinkers, but few stand up for it with enthusiasm, and few argue for its extension. Injustice challenges to strict liability take more than one form. This chapter focuses on those that see the injustice of strict liability as bound up with a failure, on the law’s part, to conform to the ideal of the rule of law. These challenges can be contrasted with those that complain of the injustice of attaching liability to morally blameless actions. Although strict liability is no-fault liability in a special lawyers’ sense of ‘fault’, it also extends in the process to many who are not at fault in the ordinary moral sense of ‘fault’, i.e. many whose actions are morally blameless.

Equity’s Own Room

Equity ◽  
2018 ◽  
pp. 1-76
Author(s):  
Irit Samet
Keyword(s):  
Rule Of Law ◽  
Mode Of Action ◽  
Ad Hoc ◽  
Common Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Unique Mode ◽  
Ex Post

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion project, which advances the idea that the differences between Equity and Common Law ought to be ironed out so as to create one seamless cloth of private law; and the ‘conscionability scepticism’, which rejects the standard of conscience—the most familiar characteristic of Equity. The chapter analyses both views in terms of the Rule of Law (ROL) ideal and goes on to argue that Equity promotes a legal virtue that is neglected by Common Law’s fixation on the ROL ideal: the ‘Accountability Correspondence’. I then attempt to show how Equity reintroduces an essential equilibrium between Accountability Correspondence and the ROL, and the dangers of neglecting to promote such equilibrium. The chapter then explains why the characteristics most associated with Equity, namely, the use of flexible, ad hoc, ex post morally freighted principles, are necessary for the attainment of this goal. Next, I contend that the standard of conscionability—the epitome of Equity’s unique mode of action, is not at all as hostile to the ROL ideal as many conscionability sceptics claim.

Is the State Subject to the Rule of Law?

1974 ◽  
Vol 9 (3) ◽  
pp. 369-412 ◽  
Author(s):  
Jacob Potchebutzky
Keyword(s):  
United States ◽  
Rule Of Law ◽  
The United States ◽  
The State ◽  
The Other ◽  
Private Law ◽  
The Rule Of Law ◽  
Jewish Thought ◽  
Government Body ◽  
The Individual

Sec. 42 of the Interpretation Ordinance [New Version] provides that: “Save as may be otherwise expressly provided therein, no enactment shall affect any right of, or impose any obligation upon, the State.”It is generally accepted that the source of the section lies in the traditional supremacy of the English Crown. Since the Crown is the lawmaker it cannot be fettered by the laws it makes unless there is express provision to that effect. On the other hand where laws confer rights upon the Crown, a contrary rule sometimes operates that a statute is to be interpreted in favour of the Crown, since in enacting it the King's subjects act as grantors of rights and the rule against derogation from grant takes effect. In point of logic, however, even without express provision there is nothing to prevent a lawgiver from placing restrictions upon himself.In Jewish thought indeed although the law emanates from the Almighty, who is indeniably Supreme Authority—”the King of Kings”—it is deemed to apply even to Him.It is surprising therefore to note that even in the United States, that model of democracy where the rights of the individual are so protected, the English approach has been adopted and extended to every government body even in the area of private law.

scholarly journals An Introduction to Abusive Legalism

2018 ◽  
Author(s):  
Alvin Y.H. Cheung
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Public Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
Democratic Norms

This project suggests that one response to growing scrutiny of authoritarian tactics is to turn to sub-constitutional public law, or private law. By using “ordinary” law in ways that seem consistent with formal and procedural aspects of rule of law, autocrats can nonetheless frustrate the rule of law and consolidate power, while also avoiding drawing unfavourable attention to that consolidation. I refer to this phenomenon as “abusive legalism.”This project makes three main contributions to the scholarship on authoritarianism. First, it focuses on the use of “ordinary,” sub-constitutional law as a means of maintaining autocratic power, an area which has been under-examined in existing work. Second, it makes the case for a normative critique of such tactics based on a relatively modest conception of the rule of law, rather than from the perspective of liberal democratic norms. Third, it offers a tentative framework for categorising and understanding abusive legalist tactics.

SAVREMENA USLUŽNA PRAVILA I VLADAVINA PRAVA

2021 ◽  
Author(s):  
Snežana Miladinović Drobnič ◽  
Keyword(s):  
Rule Of Law ◽  
Research Study ◽  
State Power ◽  
Human Security ◽  
Legal Order ◽  
Frame Of Reference ◽  
Private Law ◽  
The Rule Of Law ◽  
Legal Restrictions ◽  
Common Frame Of Reference

In this research study, the author is dealing with the contemporary service rules in the light of the idea of the rule of law. The rule of law, as Kosta Čavoški says, is "a meta-legal idea of a valid legal order that, through detailed and permanent legal restrictions of state power, appropriate properties of law and reliable institutional guarantees, most ensures human security and freedom." In this paper, the author is dealing with the concept of the rule of law and the principles on which it is based, and then analyzes the principles on which modern service rules are based. We have paid special attention to the service rules contained in the Services Directive and the Draft Common Frame of Reference for Private Law.

Sign in / Sign up

Export Citation Format

Share Document