Development Of Legal Principles Research Articles

Is the Role of Judges and Ideas About Justice Relevant in the Exercise of Interpretation?

The role of judges and ideas about justice are undeniably relevant in the exercise of interpretation within legal systems. This abstract explores the significance of judges' roles and justice concepts in interpretation, shedding light on their impact on judicial decision-making and legal outcomes. Judges, as impartial arbiters of the law, are tasked with interpreting statutes, regulations, and precedent to resolve disputes and administer justice fairly. However, their interpretations are inevitably influenced by their personal beliefs, values, and understandings of justice, shaping the outcomes of cases and the development of legal principles. Moreover, ideas about justice, such as fairness, equity, and societal values, inform judges' interpretations and guide their application of legal principles to specific cases. The tension between legal formalism and judicial discretion underscores the complexity of interpretation, as judges balance the need for consistency and predictability with the demands of justice and fairness. Ultimately, the role of judges and ideas about justice play a crucial role in the exercise of interpretation, shaping legal reasoning, judicial decision-making, and the evolution of the law.

Equity: Balancing certainty and flexibility to secure justice

The development of legal principles which arise from judicial decisions, forming the common law, are often criticised for their apparent rigidity. Equity has thus traditionally filled the role of counteracting this nature, flexibly reactive to the circumstances of those coming before the law. However, expectations that equity is simply counterbalancing the often unfair rigours of strict law obscures today’s reality that it is more than just flexible. Indeed, equity can be just as rigid in its application as the common law, being necessarily both prescriptive and vague in parts to mitigate otherwise unfair outcomes. This proposition suggests that the common law and equity are achieving unexpected forms of alignment, which may eventually prompt them to become indistinguishable without necessitating their fusion. Indeed, observing the gradual development within the judicial application of equity and its alignment with flexibility yields a limited perspective to analyse how equity achieves justice. Instead, equitable remedies, generally regarded as being the purest form of equity in action, can be studied to identify how equity at its most flexible encapsulates aspects of rigidity. Such a duality between seemingly counterposing variables demonstrates an increase in overall effectiveness. Further, drawing a comparison with common intention constructive trusts identifies that this phenomenon is not limited to equitable remedies alone. The significance of this analysis is twofold: first, it broadens the prevailing perspective of debate, which adheres to a binary view juxtaposing certainty versus flexibility; and second, it suggests that the relationship between equity and the more rigid common law is one of co-dependence, rather than the two systems being either fused or independent. Indeed, equity and the common law cannot exist without each other, as both interact to varying extents in the pursuit of justice. Crucially, this insight presents new benchmarks for the mechanisms of justice, requiring that just outcomes may not be achieved without maximising both reliability and fairness.

미국 상표법상 상표양도 법리의 전개과정과 우리 상표법과의 비교법적 검토

미국 상표법상 상표양도 법리의 전개과정과 우리 상표법과의 비교법적 검토

ПРАВОВІ МЕХАНІЗМИ УПРАВЛІННЯ КРИТИЧНОЮ ІНФОРМАЦІЙНОЮ ІНФРАСТРУКТУРОЮ УКРАЇНИ

ПРАВОВІ МЕХАНІЗМИ УПРАВЛІННЯ КРИТИЧНОЮ ІНФОРМАЦІЙНОЮ ІНФРАСТРУКТУРОЮ УКРАЇНИ

Predictability, certainty, and party autonomy in the sale and supply of goods

Predictability, certainty, and party autonomy are important goals in the development of legal principles. This article will examine these concepts and discuss a theoretical framework by which legal developments can be assessed. This theoretical framework will be applied in order to critically consider recent developments in two key areas relating to the sale and supply of goods, namely the action for price, and the characterization of contracts. In examining the interrelation between case law and legislation in these aspects of Commercial Law, the impact of the recent UK Supreme Court decision in PST Energy 7 Shipping v OW Bunker Malta (The Res Cogitans) will be explored. This landmark case considered several provisions of the UK Sale of Goods Act 1979. Many common law jurisdictions, such as Hong Kong and Singapore, have legislation that is very similar to the UK Sale of Goods Act, and Res Cogitans is thus of great interest and concern to those in such common law jurisdictions, since the courts in these jurisdictions are likely to view Res Cogitans as highly persuasive in the interpretation of similar local legislation. Various law reform options (including those inspired by the Canadian Uniform Sale of Goods Act) and suggestions for the drafting of contractual clauses will then be critically considered, with a view to promoting predictability, certainty, and party autonomy in the law relating to the sale and supply of goods.

Institutional constraints and collegiality at the Court of Justice of the European Union

This article examines how judicial selection, appointment and renewal processes deeply constrain and influence the decision-making processes at the Court of Justice of the European Union (CJEU). The short tenure period combined with the permanent triennial renewal of sitting judges are a source of instability at the CJEU and the discretion left to Member States for renewal is a concern for judicial independence. Besides, even if Member States were to concur on the core requirements of judicial merit, they may disagree on what judicial merit means in the context of the CJEU. Against this institutional background, collegiality, as a constitutive value, is a safeguard of independence as much as it facilitates the development of a common discourse within which individual decisions will be made. In this context, the development of legal principles is no worse than can reasonably be expected; the judges display considerable independence within the constraints placed upon the CJEU. However, some judgments may appear to be compromises; more radical reform is needed for those who hanker for clearer and bolder decisions. More ambitious judicial reforms can only succeed with a single, non-renewable term of office, without any triennial renewal of CJEU membership.

The development of Legal Principles on Enhanced Damages in U.S. Patent Law and U.S. Supreme Court’s Halo/Stryker Decision

The development of Legal Principles on Enhanced Damages in U.S. Patent Law and U.S. Supreme Court’s Halo/Stryker Decision

The Study of English National History by Sir Francis Palgrave: The Original Use of the National Records in an Imaginative Historical Narrative

This article reveals how the study of medieval English history, in particular its legal institutions, was remodeled and represented by Sir Francis Palgrave in an imaginative and constructive historical narrative, through the pioneering use of the national records. It demonstrates that, beyond the obvious attributes of an equivocally gothic style, the significance of Palgrave’s work lies in its innovative combination of technique and method. The argument of the article then focuses on the significance of Palgrave’s work: of his methods and theories, and how Palgrave’s interpretation of early English legal history was a vivid and innovative example of drawing conclusions from the analysis of the development of legal principles – specifically, those relating to the influences of the demographic, legal and institutional vestiges of the Roman empire on English law. His interpretation exemplified inventiveness and insightfulness of theory, matched by methodical deployment of the archival evidence to which Palgrave had unprecedented access. In Palgrave we will see the imperial idea of “authority” at its acme, before it was eclipsed by the ideas of the Germanist school and with that a reemphasized credence placed on the Common Law historiographical tradition from Coke, through Hale and culminating in Blackstone. The implications of Palgrave’s work have long been underrated, so in conclusion it is the purpose of this article to re-evaluate and revise that underestimation.

In search of a working notion of lex sportiva

The emergence of a lex specialis regime and its interaction with the established, governing lex generalis in their overlapping spheres of application is always an intriguing legal relationship to explore. In this article, the focus will be on the development of legal principles and rules that have been/can be collectively described as lex sportiva. However, it is notable that those involved in the consideration, usage and application of this notion have not agreed as to the scope and delimitation of the concept. It is debated whether lex sportiva exists in the first place, its legal sources and its purpose. The risk is for the concept becoming redundant when not vilified as a hidden strategy to exclude non-sports-related law from the ambit of sport. Through an examination of the different propositions to the framework of the term, this article will shed light on the existence, utility and limits of the development of this conceptualisation.

L. Boisson de Chazournes, C. Leb, and M. Tignino, eds, International Law and Freshwater: The Multiple Challenges, New Horizons in Environmental and Energy Law

Traditionally, analyses of the law on non-navigational uses of international watercourses (law of watercourses) have underscored the inseparability of the physical aspects of water from the legal regulation of its uses.1 However, nowhere in the literature is this nexus adequately developed. The result is that the development of legal principles has not always kept up with advances in scientific knowledge (such as our knowledge of the impact of climate change on water resources) or with technological and industrial innovations (including the phenomenon of ‘virtual water’2).3 Moreover, the subject of freshwater in international law is usually examined exclusively from the perspective of the law of watercourses and, only recently, of international environmental law and the law on transboundary aquifers,4 with scant attention paid to other relevant areas of international law and almost no recognition of the contribution of the fields of hydro-politics, hydro-economics, and integrated water...

The Development of Legal Principles against Cartels in the United States and its Implications toward Improving Cartel Regulations of Korea

The Development of Legal Principles against Cartels in the United States and its Implications toward Improving Cartel Regulations of Korea