Law Claims Research Articles

Coordination of contractual and tort claims in the European law of jurisdiction

Under Article 7(1) and Article 7(2) Brussels I-bis Regulation of 2012, there is jurisdiction for contractual and tort claims. The delineation of these matters is not easy, particularly in cases where there is a concurrency of actions. The discussion is continuing even after the Wikingerhof judgment of the European Court of Justice of 24 November 2020. The present article discusses weaknesses associated with different concepts like duties and interests. The introduction of additional elements like the ‘indispensability’ of analysing the contract in cases of tort jurisdiction are difficult to apply and lead to new uncertainty. The admissibility of annex jurisdiction for contract and tort would alleviate the problem.

Место науки конституционного права в системе юридического знания: преодоление границ формальной науки

Introduction. The article is devoted to the study of the role of modern constitutional law in the system of sectoral legal sciences. The author notes that jurisprudence in general is a formal science, the subject of which are formal systems, which, mainly, it postulates itself - specific branches of law. Until a certain period (the formation of the Constitutional Court of the Russian Federation and the adoption of the new Constitution of the Russian Federation) state law could also be considered as a sectoral science, the subject of which was mostly the system of state power organisation. However, unlike mathematics (which is also a formal science), jurisprudence possesses regulatory potential and relates to the impact on human behavior. In this way it cannot be encapsulated exclusively in the system of legal constructions outside the «life world». Research methods. A set of methods was used in the work: analysis and synthesis, induction and deduction, dialectical approach, method of comparative jurisprudence. Results. The author proves that the special role of constitutional law in the modern stage of development is that, on the one hand, through processes of constitutionalisation of other branches of law constitutional law claims to be a general system. In a certain sense, the science of constitutional law is gradually taking the place of theory of law in legal epistemology.

No Time for Justice? Obstetric Violence, Damages Claims and Prescription Periods in South African Law

Obstetric violence is currently not acknowledged as a form of gender-based violence in South African law. In this article I deal with the various issues associated with this failure to correctly categorise obstetric violence. One of the issues relates to access to legal recourse for survivors through delictual claims (torts). Delictual claims are wrongful acts or limitations of rights that can lead to legal liability in the form of monetary compensation. The current framing of obstetric violence as medical malpractice limits women's time to launch a case to only three years after the violation. To show how this issue of prescription (a legal principle where an outstanding debt can be extinguished after a prescribed time period) plays out, I focus on the 2020 report by the South African Commission for Gender Equality (CGE) on the forced or coerced sterilisation of women living with HIV at state healthcare facilities. I also examine the current case of the Centre for Applied Legal Studies (CALS), a university-based human rights law clinic, which represents over 40 women who have experienced different forms of obstetric violence at state-run facilities. In both of these examples, I explain how justice through legal recourse is denied to these victims or survivors through the mischaracterisation of obstetric violence as medical malpractice in current South African law. To show that the three-year ‘limit’ or prescription period to institute a legal claim is unjustifiable, I explore three reasons why women may not choose to or be able to proceed with a legal claim within that time period. The first of these relates to the ‘personal’ barrier women face around acknowledging they have experienced obstetric violence and bringing a claim against the state. The second, the ‘political’ barrier, includes the general and prevalent systemic gender discrimination experienced by women in South Africa and the specific barriers women face around access to dignified treatment in the country's public healthcare system. Finally, an ‘economic’ barrier is the general inaccessibility of legal representation for economically disadvantaged people in the country. Proceeding from the above, I then argue that by acknowledging obstetric violence as a form of gender-based violence and aligning it with legislation around prescription periods for other forms of gender-based violence (such as sexual offences), the burdens related to access to justice (at least in delict) can be lightened for survivors.

Voidable title in the sale of goods: One power to rescind, or two?

This article explores common law rescission within the sale of goods. It examines the proposition that the rescinding-claimant has a kind of legal, proprietary interest (a ‘power in rem’) to rescind a voidable contract of sale and revest legal title to the goods. This power is considered to be ‘proprietary’ because it binds third-party recipients who cannot plead good faith purchase, and it survives the recipient’s insolvency. The problem is that the data does not fit the theory; in truth, there is every reason to believe that the claimant has only a personal claim to rescind the contract of sale, with legal title revesting by operation of law thereafter. As a result of this analysis, we must: (i) reject the main academic account of this area of law (the ‘dual power’ analysis); and (ii) revisit the treatment of common law claims to rescind in the insolvency context.

What Is the Ideal Dimension of Law?

AbstractVarious authors have claimed that law has an ideal dimension owed to a claim to correctness. Against this thesis, this article argues that there are several ideal dimensions of law, namely, a moral, a legal, and an ontological one. All of them are independent of a claim to correctness. This claim can be understood in a strong and a weak way. Both versions are wanting because law claims neither that it is morally ideal nor that it is not grossly unjust. Consequently, the ideal dimension of law has to be found in features other than in a claim to correctness.

Rewriting the law of international organizations: Whither the Asia Pacific?

Abstract The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.

The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use.

Disobedience as Such

ABSTRACT Legal philosophers often ask whether a person has a reason to obey the law simply because it is the law. We ask the contrary question: does a person have a reason to disobey the law simply because it is the law? Many philosophers who have considered the question of disobedience have focused on injustice; others have defended disobedience on libertarian or anarchist grounds. In contrast, we argue that there is a content-independent reason to disobey the law even when it is not unjust, illegitimate, or otherwise undesirable. Legal philosophers generally agree that law claims peremptory authority, but they also generally agree that any duty to obey the law is substantially more limited. We argue that insofar as the law makes inflated claims to authority, it generates a content-independent reason to disobey. This anti-authoritarian principle is grounded in the virtue of clearly communicating one’s political commitments to others within a democratic society. By disobeying, one communicates one’s conviction that the law makes inflated claims to authority. We show how our account of disobedience as such is distinct from more familiar theories of anarchism and civil disobedience and argue that it is applicable whether one lives under conditions of justice or injustice.

Applicable Law to Marine Cargo Insurance and the Effect of Choice of Law for the Claims of Assured Companies Law

İrade serbestisinin bir görünümü olan hukuk seçimi, “sözleşmenin nispiliği” ilkesine dayanmaktadır. Tarafların karşılıklı irade beyanları temelindeki geçerli bir hukuk seçimi yalnızca sözleşmenin taraflarını bağlamaktadır. Bununla birlikte, hukuk seçimi içeren bir sözleşmeye dayalı olarak talepte bulunan üçüncü kişilerin durumu somut olayın şartlarına göre tartışma yaratabilmektedir. Bu özel durumlardan bir tanesi, deniz yoluyla taşımalarda yük sigortalarından doğan taleplere ilişkindir. 
 Ülkeler arası mal satımında, malın deniz yoluyla taşınması ve bu taşıma sırasında yükün/malın sigortalanması ticari hayatın işleyişi çerçevesinde kaçınılmazdır. Malın yüklendiği yer ile boşaltılacağı yerin farklı ülkelerde bulunması nedeniyle kanunlar ihtilafı alanına giren bu tür sigorta sözleşmelerinde sigorta ettiren ile sigortacı arasında kararlaştırılan hukuk seçiminin, anılan sözleşmeye dayalı olarak sigortacıdan talepte bulunan malın sahibi sigortalıyı bağlayıp bağlamayacağı ya da hangi şartlarla bağlayabileceği, yabancılık unsurlu bu tür sigorta sözleşmelerinden doğan uyuşmazlıklarda önemli bir soru olarak karşımıza çıkmaktadır. Türk hukukunda “tam üçüncü kişi yararına sözleşme” olarak nitelendirilen bu sigorta ilişkilerinde üçüncü kişinin hukuk seçimi ile bağlı olması borçlar hukuku ile kanunlar ihtilafı hukuku bağlamında farklı yaklaşımlar doğurabilecek niteliktedir.
 Diğer taraftan, sigorta sözleşmelerinin bir “yığın sözleşmesi” olduğu gözden kaçırılmamalıdır. Bir tarafın, diğer tarafça hazırlanan standart sözleşmeye “katılması” veya genel işlem şartlarında olduğu gibi ilgili şartları sözleşmenin karşı tarafı ile müzakere etmeksizin kabul etmesi ve hukuk seçiminin de bu şartlar içinde yer alması durumunda, hukuk seçiminin geçerliliği bakımından bazı sorunlar ile karşılaşılabilmektedir. Bu çalışmada, deniz yoluyla taşımalarda yük sigorta sözleşmelerinde yer alan hukuk seçiminin sigorta sözleşmesine dayalı olarak talepte bulunan sigortalı bakımından ifade ettiği anlam ve bu seçimin bağlayıcı olup olmadığı sorusunun cevabı aranacaktır.

EU Competences In An Age Of Complexity And Crisis: Challenges And Tensions In The System Of Attributed Powers

This article argues that the Union’s experience of tackling increasingly complex socio-economic and geopolitical problems has revealed certain limitations in our well-established legal understanding of the principle of conferral. Our current legal approach to verifying the existence of Union competence focuses almost entirely on the relationship between each and every discrete and individual Union measure, on the one hand, and its purported legal basis or bases under the Treaties, on the other hand. That approach offers only limited recognition to the particular demands imposed on Union policymaking by challenges of formidable scale, complexity and often urgency – demanding solutions based on multi-faceted, multi-component, and highly integrated regulatory packages. Such legal diffidence can generate a range of tensions: further complicating an already difficult negotiating process; interfering in or even altogether unpicking delicate political compromises; forcing the Union institutions towards suboptimal policy responses or exposing them to allegations of “competence creep”; and raising difficult questions about the estranged legitimacy claims of robust constitutional law versus effective public governance. That analysis invites us to reflect critically on the performance, merits and limits of the current Treaty frameworkgoverning attributed Union powers, not least by suggesting some potential adaptations and reforms that might help ameliorate such tensions.

Indigenous Housing Rights and Colonial Sovereignty: Self-Determination and Housing Rights beyond a White Possessive Frame

Through the lens of Aileen Moreton-Robinson's ‘white possessive logics’, this article addresses a series of legal cases concerning inhumane Aboriginal housing in the Northern Territory of Australia. It critiques successive government policies in relation to First Nations people since the colonisation of the Northern Territory in the nineteenth century, setting the cases in their historical context of ongoing subordination of First Nations people to the interests of white possession of land and governance. We argue that domestic law pertaining to First Nations housing rights manifests white possessive logics. Such control can only be overcome through affording First Nations communities self-determination over housing in accordance with international law and First Nations claims. Self-determination and sovereignty are antidotes to the colonial histories that underlie inadequate housing for Indigenous peoples not only in Australia but across settler colonies. In developing this argument, we draw on international law and honour the advocacy of Northern Territory Aboriginal communities who have struggled for community-control over housing and homelands over successive generations.

Alexy und die Ansprüche des Rechts. Eine kritische Bestandsaufnahme

This paper aims to assess Robert Alexy’s latest contributions to the debate that has followed his fundamental critique of legal positivism in The Argument from Injustice. I discuss several ways to understand the “claim to correctness” Alexy is attributing to the law, concluding, however, that none supports his own conclusion that the law nec- essarily raises a moral claim. Furthermore, I show that even though Joseph Raz argues – more convincingly – for the seemingly similar conclusion that the law necessarily claims legitimate political authority, this latter claim amounts to something quite dif- ferent. I thus conclude that Alexy and Raz disagree not so much about the implications of law’s moral claims rather than about what it means to talk about “claims of law”.

Exempting From the FAA Agreements to Arbitrate Federal Securities Law Claims

Exempting From the FAA Agreements to Arbitrate Federal Securities Law Claims

Discrimination and law beyond punishment. jury discriminatory acquittals. The Brazilian Supreme Court and ADPF 779 decision.

Discrimination has many faces unreachable by law in its usual punishment remedies. Jury discriminatory acquittals are an example, as juror’s votes are secret, and scrutiny and review of jury deliberation is limited. One set of discriminatory acquittals involves women victims: juries may discriminate against a woman freeing the husband who killed his wife “because she misbehaved.” Adultery was a frequent claim in Brazilian case law. In Brazil, a defense argument was developed over time for that purpose: “the self-defense of a man’s honor.” Can law help minimize this kind of discrimination? Are there legal remedies available beyond punishment? The Brazilian Supreme Court tackled this problem in the ADPF 779 case. One of the legal remedies engaged by the Court in the case was the review remedy: the possibility of prosecutors appealing jury discriminatory acquittals and State Courts to declare them void, so a new jury trial must be arranged. This paper aims to describe the build of the review remedy in Brazilian Constitutional Law since 1988, how the Court employed it at the ADPF 779 order, and to discuss its potential and limitations to deal with discrimination.

Compensation in the jurisprudence of the International Court of Justice: towards an equitable approach

Abstract Article 36(2) of the International Law Commission’s Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that the responsible state shall compensate for all financially assessable damage. However, ARSIWA provides no guidance as to how such a broad rule should be applied in practice, which creates significant ambiguities for adjudicators in charge of adjudicating compensation claims in international law. In the past decade, the International Court of Justice has adjudicated three important compensation cases wherein it has exhibited a visible turn to equitable considerations in compensation determination. This article conducts an analysis of such an emerging equitable approach to compensation and argues that it is a welcome development, given the flexibility it provides to the Court for balancing different factors, with the aim of achieving an equitable determination of compensation. This article also addresses the justifications and predictability concerns of this approach.

Compensation of Moral Damage in Property Crimes

For a long time, the practice of criminal proceedings was based on the approach in which the moral damage in property crimes was not recognized by the bodies of preliminary investigation as a reason for civil law claims to compensate such damage as resulting from the crime. The conducted analysis of the opinions of different scholars showed that the overwhelming majority of proceduralists support the possibility of compensating moral damage in property crimes. The author pays special attention to a criminal case of fraud with intentional breach of contract in the sphere of entrepreneurship, where the bodies of preliminary investigation refuse to recognize the founder of the company that suffered property damage as the victim, and where the rights of the injured organization are represented by a bankruptcy trustee supervising the bankruptcy of the company. Using the decisions of the Constitutional Court of the Russian Federation on this problem, and the decrees of the Plenary Session of the Supreme Court of the Russian Federation, the author concludes that the procedural interest of the founder of the organization liquidated during criminal proceedings, and acting as the injured organization in the criminal case, consist in obtaining an independent procedural status of a victim, which gives this person an opportunity to actively participate in criminal prosecution, directly protect the rights and lawful interests or the injured organization alongside the bankruptcy trustee, and bring a civil action for the compensation of moral damage caused by the crime.

Justifications and Rights-Displacements

AbstractIn articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (i.e., actus reus + mens rea). The latter is a denial that the agent committed any pro tanto offence at all. In this piece, I build on Gur-Arye’s argument, suggesting that her claim about powers can be extended to all instances in which rights are displaced. I argue that in its expanded form, the practical significance of Gur-Arye’s claim goes well beyond what she identifies. It points to important and underappreciated points about the structure and classification of defensive claims in the criminal law, and helps identify errors in some arguments commonly made to support claims about disputed features of justifications.

Political Legitimacy: What’s Wrong with the Power-Liability View?

Abstract In this paper, I take issue with Arthur Isak Applbaum’s power-liability view of political legitimacy. In contrast to the traditional view that legitimate rule entails a moral duty to obey, here called the right-duty view, Applbaum argues that political legitimacy is a moral power that entails moral liability for the subjects of political rule. According to Applbaum, the power-liability view helps us explain how responsible citizens in some cases can act contrary to law while still recognizing the claims of law. Against Applbaum’s attempt at establishing the power-liability view through conceptual analysis, I argue that we cannot specify the moral implications of de jure legitimacy without considering the moral argument that justifies the right to rule. I further argue that Applbaum’s normative account of political legitimacy implies commitment to a normative idea that forms the basis of a strong case in favor of the right-duty view. Finally, I argue that the present defense of the right-duty view has resources to account for the moral phenomena that prompt Applbaum’s advocacy of the power-liability view.

Stopping the Boats, Changing the Narrative: How the Migrant Refugee Bildungsroman Became a Ghost Story

What literary conventions best help us understand the migrant refugee’s claim for protection, and the terms on which law claims to offer it? One contender to have attracted attention recently is “bildungsroman” (“formation novel”), since the narrative of the refugee escaping danger and oppression to find safety and stability within a host state arguably maps onto bilgungsroman’s themes of a protagonist’s difficult personal journey from margins to social acceptance and flourishing. However, this view is now seriously undermined by legislative initiatives in the UK aimed at ensuring migrant refugees who cross the English Channel in small boats should have no cause to hope for such a happy ending. By way of a close reading of the narrative implications of these initiatives, this article proposes a thorough rethink of our approach to figuring the irregular migrant refugee. Rejecting bildungsroman as now implausibly optimistic, the article suggests we look instead to the ghost, whose “presence” is typically the chief problem for those to whom it appears, whose “shape” is uncertain, and whose complaints and demands inspire dread and strenuous efforts to make it disappear. The article employs these conventions to draw a new relationship between refugee migration law and the arts, and argues that if the UK’s policies for “stopping the boats” may be characterized as an attempt to effect such a disappearance, then the migrant refugee’s reappearance in visual art offers a ghostly figuration of resistance and of admonishment at injustice unredressed and obligations unfulfilled. The article traces these qualities and explores their critical potential through two recent works of visual art, namely “The Walk” (2021–22) and Gideon Mendel’s “Dzhangal” [“Jungle”] (2016–17). Both of these works admit of multiple readings, but both also crucially resist the punitive and reductive framing of migrants in law in some surprising ways.

Review: Defend the Sacred: Native American Religious Freedom Beyond the First Amendment, by Michael D. McNally

Book Review| May 01 2023 Review: Defend the Sacred: Native American Religious Freedom Beyond the First Amendment, by Michael D. McNally Defend the Sacred: Native American Religious Freedom Beyond the First Amendment. By Michael D. McNally. Princeton University Press, 2020. 400 pages. $115.00 hardcover; $27.95 softcover; ebook available. Tarryl Janik Tarryl Janik University of Wisconsin–Milwaukee Search for other works by this author on: This Site PubMed Google Scholar Nova Religio (2023) 26 (4): 130–132. https://doi.org/10.1525/nr.2023.26.4.130 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Tarryl Janik; Review: Defend the Sacred: Native American Religious Freedom Beyond the First Amendment, by Michael D. McNally. Nova Religio 1 May 2023; 26 (4): 130–132. doi: https://doi.org/10.1525/nr.2023.26.4.130 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentNova Religio Search This important book engages the ongoing struggle of Native Americans to protect the sacred, their land, and treaty rights. Michael McNally recognizes how the term religion as a western category has failed Native Americans through law by not fully interpreting the complexities of Indigenous religions. Nevertheless, he argues that even though religion is a problematic term, it remains useful, especially if “imagined capaciously as an Indigenous collective right keyed to the collective nation-to-nation relationship [that] can carry the legal teeth of religious freedom” (xv). What McNally proposes in his latest book on American Indigenous religions is an integrative approach wherein Native American religious claims connect with elements of federal Indian law, while Indigenous rights operate within international human rights law. He argues that not only does the language of religion still have value for Native American religious claims in law, but that sovereignty, religion, and peoplehood should be seen as... You do not currently have access to this content.