scholarly journals Apontamentos sobre o ordenamento jurídico na perspectiva do direito comparado

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.

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.


2019 ◽  
pp. 89-126
Author(s):  
Alf Ross

This chapter identifies the ideology of the sources of law in the sense of determining the general sources through which judges form their beliefs about the validity of individual legal rules. In accordance with the norm-descriptive perspective, the focus is on identifying the ideology of the sources of law that is actually held by judges. As part of scientifically valid law, the ideology of the sources of law varies from one legal system to another. The task for general legal theory can therefore only consist in stating and characterizing certain general types of sources of law, which experience tells us are found in all well-developed legal systems where they are found to determine how courts proceed in their search for the norms on which they base their decision. This chapter identifies four such sources of law and considers the degree of objectification or positivization possessed by each of these types of sources. Specifically, it discusses the completely objectivized type of source: authoritative formulations (legislation in its widest sense); and the partially objectivized types of source: precedent and custom; and the non-objectivized, ‘free’ type of source: ‘cultural tradition’ or ‘the nature of the matter’. Countenancing the latter as a scientifically valid source of law, is further argued to highlight the difference between the author’s legal realist perspective and the formalist perspective characteristic of legal positivism.


2016 ◽  
Vol 5 (1) ◽  
pp. 1-13
Author(s):  
Hamed Alavi

Abstract Article 4 of the Unified Customs and Practices of Documentary Letters of Credit establishes the notion of autonomy principle by separating credit from underlying contract between account party and beneficiary. Article 5 by recognizing the autonomy principle confirms that effectuate the payment under credit, banks only deal with documents and not with goods. As a result, while documentary letters of credit are meant to facilitate the process of international trade, their sole dependency on compliance of presented documents to bank by beneficiary to actualize the payment will increase the risk of fraud and forgery in the course of their operation. Interestingly, UCP (currently UCP600) takes a silent status regarding the problem of fraud in international LC operation and leaves the ground open for national laws to provide remedies to affected parties by fraudulent beneficiary. National Laws have different approaches to the problem of fraud in general and fraud in international LC operation in particular which makes the access of affected parties to possible remedies complicated and difficult. Current paper tries to find answer to the questions of (i) what available remedies are provided to affected parties in international LC fraud by different legal systems? (ii) And what are conditions for benefiting from such remedies under different legal systems? In achieving its objective, paper will be divided in two main parts to study remedies provided by intentional legal frameworks as well as the ones offered by national laws. Part one will study the position of UCP and UNCITRAL Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention) and remedies, which they provide to LC fraud in international trade. Part two in contrary will study available remedies to LC fraud and condition for access them under English and American legal system.


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.


2010 ◽  
Vol 59 (4) ◽  
pp. 1099-1127 ◽  
Author(s):  
Bo Yin ◽  
Peter Duff

Taxonomy, as a methodological tool introduced from natural science, brought the categorization of legal systems to comparative law.1The term ‘legal family’2is normally used as a metaphor, because it recognizes that within each grouping there are many variations. Each of the legal families is regarded as a combination of fundamental features of legal systems which have certain similarities. As an analytical device, taxonomy renders the comparison of different laws and legal institutions manageable by means of simplifying or abstracting the diverse and complicated realities of a myriad of legal systems. As a result, the concept of legal families acts as a support for legal borrowing and transplantation, as well as comprising an inevitable part of most comparative law works. Even where as few as two jurisdictions are involved, the categorization of legal families is still a useful tool for most comparative legal analysis. Assisted by the notion of legal families, comparativists can readily understand and explore an unfamiliar legal system.3Normally, such scholars tend to accept the conventional or widely accepted categorization of a particular legal system as belonging to a certain legal family. However, without detailed scrutiny of the first-hand material, distortions may arise as a result of preconceptions held at the beginning of the comparative study.4


2017 ◽  
Vol 1 (2) ◽  
pp. 141
Author(s):  
Claire Powell

This article will compare Australian, Madayin and Talmudic law in terms of their respective sources and purposes. It will focus on the characterisation of each system to highlight conceptual similarities and differences which affect their operation and, in particular, their commensurability with other systems. Specific areas of law concerned with coexistence are identified as being both crucial and particularly problematic. Notwithstanding Australian government statements and High Court rulings asserting the sovereignty of Australian law, it will be argued that no legal system is self-contained Accommodations are essential and require legislators to grapple with the difficulties of reconciling differing conceptualisations using an informed comparative framework. Talmudic law is considered here as an example of a system which has demonstrated the ability to coexist adaptively with a variety of other systems without compromising its integrity.


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.


2019 ◽  
pp. 127-185
Author(s):  
Alf Ross

This chapter focuses on legal method and aims to determine the principles of interpretation that are scientifically valid. In accordance with previous chapters, this implies that the perspective is norm-descriptive, not norm-expressive. The aim is not to establish which principles of interpretation are correct but which principles judges hold to be correct and which, as such, actually guide the courts when they apply general legal rules to specific subject matters. As with the sources of law, the ideology of interpretation varies from one legal system to another. Accordingly, the task for general legal theory can only be to explain certain factual presuppositions concerning problems of method, and to place and characterize various existing styles of method and interpretation within the framework of a general typology. Furthermore, the chapter focuses primarily on problems of method in relation to statutory interpretation which features more prominently within Continental legal systems where legislation is the predominant source of law. On the basis of a general account of semantics, the chapter proceeds by analysing three types of problems of interpretation—syntactic, logical, and semantic—and concludes by reflecting on the role of pragmatic factors in the exercise of legal authority.


1980 ◽  
Vol 15 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Shmuel Shilo

The Jewish legal system's concept ofKofin al midat S'dom(kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of thekofinprinciple. We will discuss those problems which are dealt with within the framework ofkofineven if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule ofkofinis to be applied, since they have been solved by other legal rules.


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