substantive law
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Lex Russica ◽  
2021 ◽  
pp. 9-21
Author(s):  
M. V. Mazhorina

The autonomy of the will of the parties (lex voluntatis) is one of the central institutions of private international law that, in the context of proliferation of non-legal subject matter, multiplying sources of non-state regulation, and also due to the conceptualization of the institution of “rules of law” in the practice of world arbitrations, acquires a new methodological meaning and requires its rethinking. The paper examines the institution of the autonomy of the will of the parties from different angles: as a principle of conflict of laws, as a substantive law institution, and as a mechanism for legitimizing the norms of non-state regulation. The autonomy of the will of the parties today acquires a visible potential of a legal basis for the construction of a special, possibly “hybrid,” regulatory regime for cross-border private law, for mainly contractual relations, it becomes a form of expression of the right to choose non-law. Interpreting the autonomy of the will through the prism of the substantive law theory and in the context of admitting the choice of non-state regulation as the applicable law can pose a serious risk both for the parties to cross-border agreements and for the law-enforcer in terms of conflicting law and non-law. The author concludes that acknowledgement that the institution of autonomy of the will authorizes the right to choose non-law, in fact, means that a fragmented legal space, which itself differs significantly from state to state, can collide with a rapidly scalable, even more heterogeneous non-state array of norms emanating from non-state actors. This state of the normative superstructure can be characterized as a conflict of law and non-law and requires the development and adjustment of an appropriate methodology of private international law.


2021 ◽  
Vol 21 (5) ◽  
pp. 86-132
Author(s):  
M.I. LUKHMANOV

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.


2021 ◽  
Vol 59 (1) ◽  
Author(s):  
Muhammmad Rafeeq Shinwari

The Ḥanafī legal theory is characterized by the fact that unlike other Islamic legal theories it has been extracted from the Ḥanafī fiqh developed by its founding jurists. Later, the Ḥanafī fiqh seems to have gradually split down into trends; one representing the jurists/theorists of ‘Irāq and the other representing those of Mā Warā’ al-Nahr/Samarqand. Both of these trends have left a great impact on the Ḥanafī legal theory. The paper aims to look over this bifurcation and trace its origins to the Ḥanafī fiqh itself. For this purpose, it analyses the works of pioneering Ḥanafī theorists such as Abū Bakr al-Jaṣṣāṣ, Abū Zayd al-Dabūsī, Abū al-Ḥasan al-Bazdawī, and Muḥammad b. Aḥmad al-Sarakhsī in chronological order. The paper finds that al-Jaṣṣāṣ is the pioneer in terms of the development of the Ḥanafī legal theory; al-Dabūsī’s work is characterized by introducing new terminologies; and the works of al-Bazdawī and al-Sarakhsī are useful for arriving at the conclusive stance of the Ḥanafī legal theory. Though the latter two theorists belonged to Mā Warā’ al-Nahr, their preference in some occasions for the views of ‘Irāqī theorists indicate that they did not engage as communal competitors; rather, they played their roles as referees by relying greatly on Ḥanafī fiqh while developing Ḥanafī legal theory. They made robust efforts for tracing the origin of a Ḥanafī theoretical viewpoint to Ḥanaf┘ substantive law or furū‘. This is how they successfully showed the coherency and consistency in Ḥanafī fiqh and uṣūl. This paper specially focuses on al-Sarakhsī’s Uṣūl in which he critically examined the views of his predecessors from Mā Warā’ al-Nahr r on certain issues.


Author(s):  
Petro Guyvan

Purpose. The work is aimed at studying current issues on the temporal dimensions of subjective civil law and the possibilities of its protection in the event of an offense. After all, the issue of timely exercise of subjective law is very important in society. Therefore, the term is a necessary and integral element of the content of substantive civil law, the certainty in this regard will also provide certainty in the application of the necessary legal protection tools. Methods. From the methodological point of view, the work substantiates the thesis that with the expiration of the statute of limitations the regulatory right ceases and thus the subject of protection itself ceases. Results. This concept does not cover all cases of violation of subjective civil law, in particular, it is not able to justify the proper protection of property rights in cases where one of the rights of the owner is violated, such as the right of possession or use. Because the very fact of the offense in such cases does not terminate the right of ownership. Therefore, it is emphasized that the legal analysis of the commented temporal coordinates should be carried out not within the existence of the protected (regulatory) right, but within the protection, that is, what arose as a result of the offense. Scientific novelty. The modern development of civil doctrine allows us to conclude that the subjective substantive law is realized within the regulatory legal relationship, and in case of violation of the latter there is a new separate protective obligation, within which protection is carried out, in particular, through claims. At the same time, it is obvious that judicial protection does not exhaust the protective property of the law. In most cases, non-judicial remedies do not restrict the creditor's use of such remedies in time. Practical significance. The paper establishes that the right to exercise the protection authority, which is part of the content of the relevant protection obligation, exists for the duration of the right, except when the law explicitly establishes a special term of its validity. The violated substantive law after the expiration of the statute of limitations does not remain completely unprotected, although the degree of its protection is somewhat reduced.


Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Delano Cole van der Linde

The law of criminal procedure is “double functional” in that it not only dictates the proper procedure for the execution of police functions but also serves as a ground of justification in substantive law against otherwise unlawful conduct. Nevertheless, personal liberties, even in the pursuit of justice in a country overrun by crime, cannot be sacrificed indiscriminately simply to further the diligent investigation of crime.An example of personal liberties being sacrificed in favour of the pursuit of justice is the search and seizure of private spaces of individuals. Search and seizure may be effected both with and without a warrant and is regulated by the Criminal Procedure Act 51 of 1977 (CPA). However, where a police official acts outside of this legislative matrix, his or her conduct is not regarded as lawful; he or she may not rely on official capacity as a ground of justification against an (unlawful) search. In such instances, the Minister of Police may be vicariously liable in delict owing to the unlawful conduct of police officials. Such cases are relatively rare.This contribution will focus on two specific aspects – namely, search and seizure conducted without a warrant, and subsequent awards for damages based on unlawful, warrantless searches. The recent judgment in Shashape v The Minister of Police (WHC (unreported) 2020-04-30 Case no 1566/2018 (Shashape)) is discussed against this backdrop.


2021 ◽  
Vol 2 (2) ◽  
pp. 167-179
Author(s):  
János Martonyi

Ferenc Mádl, while rising to the ranks of the outstanding Hungarian statesmen who served their country unconditionally, remained a scholar with exceptional knowledge and a unique academic life. In the 1970s, he was the first to recognise that even the broadest interpretation of the field of private international law could not cope with the expansion and transformation of international economic relations in the world and in our country. Reality had gone beyond the given framework of thought, „the facts had rebelled”, a new system and new solutions were needed. A new discipline, international economic law was born to meet the needs of theory, education and practice. The new field of law not only sensed the changes in reality and the interconnections between different areas of reality, but also anticipated the future. Decades later, Ferenc Mádl comprehensively summarised the most important legal consequences of economic, political and social changes and demonstrated the role of law in these changes. In the field of international economic relations, changes have continued to accelerate, new issues and new dilemmas have emerged, including in the area of foreign investment, where public law meets private law, international law meets national law, substantive law meets procedural law. These – and many other exciting new topics – remain best located, cultivated and taught in the field of international economic relations 'invented' by Ferenc Mádl.


2021 ◽  
Vol 124 ◽  
pp. 35-46
Author(s):  
Anna Boguska ◽  
Łukasz Pisarczyk

The purpose of this article is to present the safeguard role of the labour law in the context of labour law disputes. Authors deliberate to what extent the procedural law impacts the substantive law. Particular attention was paid to new institutions of the Polish code of civil proceedings introduced by the law of 4 July 2019 and their influence on the procedural position of the parties of the employment relationship.


2021 ◽  
Author(s):  
Peter Van den Bossche ◽  
Werner Zdouc

Since the publication of its first edition, this textbook has been the prime choice of teachers and students alike, due to its clear and detailed explanation of the basic principles of the multilateral trading system and the law of the World Trade Organization (WTO). The fifth edition continues to explore the institutional and substantive law of the WTO. It has been updated to incorporate all new developments in the WTO's ever-growing body of case law. Moreover, each chapter includes a 'Further Readings' section to encourage and facilitate research and discussion on the topics addressed. As in previous editions, each chapter also features a summary to reinforce learning. Questions, assignments, and exercises on WTO law and policy are contained in an online supplement, updated regularly. This textbook is an essential tool for all WTO law students and will also serve as a practitioner's introductory guide to the WTO.


2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Daniel Pi

Abstract Skeptics of rational choice theory have long predicted that behavioral economics would radically transform the legislation, adjudication, and analysis of law. Using tort law as an exemplar, this Article maps out the narrow set of conditions where substantive law can be modified to accommodate irrational decision-makers. Specifically, this Article demonstrates that if injurers are systematically biased, and the due care standard can be expressed quantitatively, and victims are unable to take meaningful precautions, then imposing punitive damages can induce irrational injurers to exercise efficient precautionary care. In all other cases, it is better that the law adopt a presumption of rationality, regardless whether individuals behave rationally in fact.


2021 ◽  
Vol 43 (1) ◽  
pp. 299-314
Author(s):  
Rafał Mikowski

The text presents the multidirectional infl uence of the ways of exercising power and relations between public authorities and citizens in the context of common values, which are public order and security, against the background of the rules governing access to firearms. The shaping of the government’s policy in the field of access to firearms is in many places marked by legal solutions characteristic of the remnants of the authoritarian regime. In terms of access to fi rearms, the authoritarian manner of exercising power was characterized by the pursuit of strict control over gun ownership. The trust of the authoritarian authorities in certain social groups, limited to the minimum, was visible in the discretionary, but also planned and imperative exclusion of firearms from public life and reserving this right for services, organizations, or specific groups favorable to the authorities. The current regulations on the possession of firearms, both in Poland and in the world, show that the liberal policy of administering access to firearms is based on democratic solutions. The policy of prohibiting and introducing restrictions in this area with the use of authoritative methods of state action gives rise to research that exposes the essence of the authorities’ fears of a complete opening of access to weapons. The administrators, referring to the principle of trust in the authorities, are approaching the features of an authoritarian approach to maintaining power, which is not to be hampered by the possession of weapons by citizens. Completely free access to firearms is not characteristic to those forms of government in which there is no trust in state’s citizens, nor confidence in government’s position, susceptible to possible changes. In this regard, the basic rules governing access to firearms were presented, both in substantive law and in the rules of administrative procedure, with particular emphasis on the principle of raising trust in public authorities. It was also important to analyze the origins of the administrative power with an indication of the characteristic elements of the police state and their impact on the visions of access to firearms in the rule of law. Such a structure of the study made it possible to try to define the relationship between the trust of the authorities in their citizens and the trust of those administered to the authorities against the background of broadly understood security in the field of access to firearms.


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