scholarly journals Interconnecting Legal Systems and the Autonomous EU Legal Order: A Balloon Dynamic

Author(s):  
Inge Govaere
Keyword(s):  
1996 ◽  
Vol 45 (1) ◽  
pp. 52-81 ◽  
Author(s):  
Pierre Legrand

Since the late 1940s, economic considerations relating to the globalisation of world markets have led an ever larger group of Western European countries to unite in the quest for a supra-national legal order which, in time, generated the European Community. Most of these countries' legal orders claim allegiance to what anglophones are fond of labelling the “civli law” tradition,1although two common law jurisdictions joined the Community in the early 1970s. The European Community's early decision to promote economic integration (and, later, other types of integration) through harmonisation or unification has involved, at both Community and national levels (for the implementation of Community rules in the member States carries the adoption ofnationalrules in all member States), a process of relentless “juridification”; law, in the guise of legislatively or judicially enacted rules, has assumed the role of a “steering medium”.2This development was foreseeable: once the interaction among European legal systems had acted as a catalyst for the creation of a supra-system,3the need to achieve reciprocal compatibility between the infra-systems and the supra-system naturally fostered the development of an extended network of interconnections (such as regulations and directives) which eventually raised the question of further legal integration in the form of a common law of Europe.4


2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.


1998 ◽  
Vol 26 (1-3) ◽  
pp. 56-159
Author(s):  
Jean-Marie Henckaerts

The effects of international law on the domestic legal order of the various countries of the world are manifold and so are the issues covered in this bibliography. In some countries, some international treaties or treaty provisions can be invoked before and applied by national judges. These are the so-called self-executing treaties or treaty provisions. Whether treaties are self-executing is a domestic legal question for national judges to decide on an ad hoc basis. In other countries, no treaty can be applied by a national judge unless it has been transformed into national legislation by an act of the national legislature. The concept of self-executing treaties has much less significance in these countries. This difference relates to two theories of international law known as monism and dualism. Under these theories, the international and domestic legal order are considered as one indivisible hierarchy or as two separate hierarchies respectively.


2014 ◽  
Vol 8 (1) ◽  
pp. 24-30
Author(s):  
Emilian Ciongaru

The legal issues compared by litigants to the phenomenon of globalization include thepenetration of global juridical values into the national law systems to which they do nottraditionally belong and thus, we may speak of the globalization of law. Globalization, aphenomenon that practically extends the communication bridges among states also results inthe fact that the internal legal order expands towards a new legal order, namely a globallegal order. In this context, the modernization and compatibility of the legal systems throughthe transfer of law is inevitable, a fact that might mean the total or partial replacement of alaw system which proves to be out of date or obsolete by a system or parts of it assumed to besomehow superior and healthier and aiming at enriching or treating such system so as toensure the compatibility of an internal legal system to the regional and inevitably theinternational one. In these conditions, the science of law exceeds the borders and the internalorganization rules of a certain state may be useful in other state and vice-versa.


2021 ◽  
Vol 2 (1) ◽  
pp. 40-63
Author(s):  
Matija Stojanović

This article will try to uncover the stance which the early Christian Church held on the legal system of the Roman Empire, in an attempt to reconstruct a stance which could apply to legal systems in general. The sources which we drew upon while writing this paper were primarily those from the New Testament, beginning with the Four Gospels and continuing with the Acts of the Apostoles and the Epistoles, and, secondarily, the works of the Holy Fathers and different Martyrologies through which we reconstructed the manner in which the Christian faith was demonstrated during the ages of persecutions. The article tries to highlight a common stance which can be identified in all these sources and goes on to elaborate how it relates to legal order in general.


Author(s):  
Zarianna Solomko

The subject of this research is the phenomenon of archaization of legal form, which is reflected multiple modern legal systems, including the legal system of modern Russia. The author believes that the state of current Russian legal order testifies to the downfall of one of the declared goals of Russia’s policy of the last three decades – establishment of the so-called rule of law; while the general academic theory of law has not yet formulated a precise understanding of the corresponding processes, as fearing to go beyond the scope of certain ideological boundaries, it first and foremost deals with the formally due than with actually essential. Archaization in the legal systems of modern countries is the revival of the forms of law, legal practice and legal consciousness that are inherent to the pre-capitalist societies. The thesis is substantiated that the process of archaization of law and legal form as a whole, should be considered as one of the objectively determined development patterns and functionality of the societies of dependent peripheral capitalism. The article reviews the objective prerequisites for this phenomenon: its conditionality by socioeconomic relations (preservation of the elements of other production methods in terms of peripheral capitalism), inequality in distribution of the key social resources, and specific social-class structure of the corresponding societies. The general definition of archaization of legal form acquires more precise contours when the author turns to the realities of modern Russian legal order.


2017 ◽  
Vol 42 (01) ◽  
pp. 28-37 ◽  
Author(s):  
Daryl Levinson

How is legal order possible? Why do people comply with law when it prevents them from doing what they think best? Two important books show how these questions can—and from some methodological perspectives must—be answered in the form of game-theoretic accounts that show how legal compliance can be compatible with the broad self-interest of officials and citizens. Unfortunately, however, these books also serve to demonstrate that game-theoretic accounts along these lines lack the resources to explain how real-world legal systems emerge and evolve or the various institutional shapes these systems take. The fundamental limitation of game theory, in this context and more generally, is its inability to predict or explain the size and shape of cooperative equilibria.


2021 ◽  
Vol 2 (1) ◽  
pp. 02-17
Author(s):  
Flávio Marcelo Rodrigues Bruno

Os primeiros registros de comparação entre direitos distintos remetem a antiguidade, contudo, veio a firmar-se como um estudo sistemático somente em meados do Século XIX. Hodiernamente, é inquestionável a importância do método comparatista, para o aprimoramento dos Sistemas Jurídicos que regem as nações. Sendo este, uma fonte extremamente importante para o cotejo de semelhanças e diferenças entre normas, instituições, mecanismos etc., que poderão futuramente ser recepcionados por um determinado país. Pode-se afirmar, nesse contexto, que é importante a comparação entre realidades similares para evitar inoperabilidade ou mau funcionamento do conceito importado. Por exemplo, tem-se o caso do instituto da delação premiada que ao ser importada e recepcionada no ordenamento jurídico do país que o recepcionou desvirtuou-se de sua proposta inicial. Entende-se, portanto, que o estudo comparativo do direito é fundamental para a análise e compreensão das distintas famílias jurídicas, sendo um método indispensável para resolver situações de conflitos entre normas de países diferentes, assim como, para o aprimoramento das normas e mecanismos vigentes no país. Sob esta perspectiva, de auferir essencialidade à metodologia comparativa entre distintas concepções normativa, é que o presente trabalho tem por objetivo refletir sobre o ordenamento jurídico na perspectiva positivista kelseniana, verificar o sentido e a compreensão sobre a metodologia comparativa e dimensionar a importância da interface entre ordenamentos jurídicos na perspectiva comparada. Concluindo que não existem ordenamentos jurídicos porque há normas jurídicas, mas existem normas jurídicas porque há ordenamentos jurídicos distintos dos ordenamentos não jurídicos – perspectiva essencialmente comparativa.   The first records of comparison between distinct rights refer to antiquity, however, it came to be established as a systematic study only in the mid-nineteenth century. The importance of the comparative method is undoubtedly important for the improvement of the legal systems that govern nations. This is an extremely important source for the comparison of similarities and differences between norms, institutions, mechanisms, etc., which may be approved by a given country in the future. In this context, it can be stated that it is important to compare similar realities to avoid inoperability or malfunction of the imported concept. For example, there is the case of the institute of the awarding donation that when being imported and received in the legal system of the country that received it distorted its initial proposal. It is understood, therefore, that the comparative study of the law is fundamental for the analysis and understanding of the different legal families, being an indispensable method to resolve situations of conflicts between norms of different countries, as well as, for the improvement of the norms and mechanisms in force in the country. In this perspective, to gain essentiality to the comparative methodology between different normative conceptions, is that the objective of the present work is to reflect on the legal order in the positivist kelsenian perspective, to verify the meaning and the understanding about the comparative methodology and to dimension the importance of the interface between comparative perspective. Concluding that there are no legal systems because there are legal rules, but there are legal rules because there are different legal orders of non-legal systems - an essentially comparative perspective.


2016 ◽  
Vol 4 (4) ◽  
pp. 0-0
Author(s):  
Oksana Lutkova

This article considers the basic concepts of the private international law doctrine about “splitting of the statute”. Statute splitting is the phenomenon when more than one legal order is applied at the same time to a single legal relation. However, there are several conflicting approaches regarding this scientific issue. Representatives of one of the approaches see splitting of the statute in the domestic law conflicts of state characterized by a multiplicity of legal systems. Representatives of the other approach believe that splitting of the statute occurs when separate parts of a single legal relation are subject to different conflict of law rules. The author of this article holds the opinion of the representatives of yet another approach to this issue and gives arguments in favor of the position that “genuine” splitting of statute means that a single legal relation is regulated by a single conflict of laws rule but in reality the laws of several states rather than the law of one state are applied according to the facts of the single legal relation. The author suggests new terminology for the “splitting of the statute” concept.


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