Interpretation Of Law Research Articles

ESTUPRO DE VULNERÁVEL: ANÁLISE JURÍDICA E JURISPRUDENCIAL DA CONSTITUIÇÃO DE FAMÍLIA ENTRE VÍTIMA E AGRESSOR

This paper addresses the theory of "distinguishing" and its implications for legal decisions on the crime of rape of a vulnerable person, according to article 217-A of the Brazilian Penal Code. The research examines the evolution of case law interpretations on this criminal provision, with emphasis on the application of new understandings in the Superior Courts, especially with regard to the circumstances involving the consent of the victim and the formation of a family. The general objective is to understand the new case law understandings and how they impact first instance decisions, considering the principles of the best interest of the child, reasonableness and proportionality. The methodology used was bibliographical research, based on legal doctrines, scientific articles and case law, in addition to the quantitative approach to analyze judicial decisions. The research sought to highlight the changes in the positions of the Supreme Court of Justice, particularly with regard to the application of the theory of "distinguishing", and how this theory can influence the conviction or acquittal in cases of rape of a vulnerable person, considering the family context and constitutional rights.

Analogical Reasoning in Tax Law – Selected Issues

Reasoning by analogy is well known in many branches of the law. Nevertheless, in the case of tax law, it is still a live and controversial issue. The application of reasoning per analogiam deals with a dilemma typical of the law and is of great value for practice. It is rare to find legal provisions on the admissibility of the use of analogy in the process of tax law interpretation. Owing to the universal nature of this method of inference, it is possible to analyse and draw conclusions regarding its applicability in the national legal orders of continental legal systems. As part of the analysis, the authors present arguments for and against the use of analogy in tax law. Subsequently, the analysis covers selected legal regulations in which the legislator has or has not explicitly referred to the permissibility of the use of analogy in tax law. This section deals in particular with the regulations of Brazil, Spain, Germany, Poland, and Portugal. The authors have also pointed out the distinctiveness of the appropriate application of the legislation and the application of analogy. The article also includes an analysis of selected Belgian, Czech, Polish, and German rulings. The study based on the above leads to the conclusion of a diverse approach to analogy. The research identifies areas of permissibility for the use of analogy in tax law. The authors made use of the comparative and dogmatic-legal methods.

What mode is conducive to an effective regional IP regime? Evidence from intellectual property courts in China

Amid a patent boom and increase in patent infringement cases, China is a fast-growing catch-up country in the intellectual property (IP) regime, with arguments on effectiveness and standardization. In 2014, China installed three intellectual property courts (IPCs) in Beijing, Shanghai, and Guangzhou. This reform represents a crucial step in a series of reforms and actions that seek to establish a uniform and standardized judicial IP regime in China. Based on interviews, statistical reports, and an analysis of judicial documents, this study argues that the interpretation and execution of IP law vary across the three locations due to the embeddedness of those courts and their judges in the regions. Indications that the regional setting and presence of international firms affect the efficient proceedings of IP tribunals and courts were found as a result. Given that IP law is the same all over a country, it can be concluded that courts balance national regulation and regional realities.

Teleological Interpretation by International Economic Organizations

Teleological interpretation is a legally sound approach to empower an international economic organization to grow and develop, as it responds and adapts itself to ever-changing circumstances. The method is consistent with customary rules of interpretation of public international law, whilst being distinct from law-making. The twin Bretton Woods institutions are experienced in exercising teleological interpretation, and the new Asian Infrastructure Investment Bank (AIIB) follows suit and innovates in applying this interpreting method. On the contrary, the World Trade Organization (WTO) does not have a strong tradition of teleological interpretation, but it should learn from its peer institutions, and with the membership support, acknowledge and embrace this feasible interpreting method, as it seeks to survive or revive in these difficult times.

Balancing the legal, ethical, and practical aspects of using digital health technologies in clinical research

Digital health technologies bring innovation to participants in clinical trials. They enable the collection, use, and sharing of large amounts of data for medical and scientific research purposes, which ultimately benefits patients. In the context of drug development, traditional clinical trials face significant privacy challenges due to a lack of harmonisation and diverging interpretations of privacy laws and authorities’ guidance. Given the use of digital health technologies, decentralised trials in particular have to manage an additional level of complexity. Involving technology providers increases concerns around the access, storage, and security of study data. Authorities, ethics committees, and healthcare institutions often ask for various additional or bespoke requirements that may diverge from or even conflict with each other, which can lead to unintended consequences for research initiatives and for individuals who are willing to participate in innovative clinical trials. This article outlines some legal, ethical, and practical issues as well as their consequences when using digital health technologies in the research sector.

Competing interpretations of international law: Law and politics in the war crimes trials of Nationalist China, 1946–1949

Competing interpretations of international law: Law and politics in the war crimes trials of Nationalist China, 1946–1949

Implementation and Interpretation of The Definitions of International Crimes in The National Jurisdiction of Ukraine

The article consists of two parts, the first of which discusses the problems associ ated with implementing the provisions of international law in the Ukrainian legal system regarding the understanding of the concept of “international crimes”. It underscores that the different definitions are due to the fact that Ukraine is not a party to the Rome Statute. However, it should be noted that most provisions of international law regarding interna tional crimes regarding war crimes, the crime of aggression and the crime of genocide are part of the Ukrainian legal system. At the same time, there are no crimes against human ity in Ukrainian national criminal law. The second part addresses the issues regarding Ukrainian courts’ interpretation of the national criminal law and international treaties on international crimes: interpreting the provisions of United Nations acts and the Rome Statute, applying the principle of “nullum crimen sine lege”in the context of prosecuting the crime of Holodomor, interpreting the provisions of the European Convention on Human Rights in connection with the use of trial in absentia in the case of Russian war criminals and interpreting provisions regarding universal jurisdiction in Ukrainian law.

In continuation of the discussion on the interpretation of law: interpretation in the context of postclassical legal studies

A review of the collective monograph “Interpretation of Law has been published: classics and postclassic” edited by E. N. Tonkov, I. L. Chestnov, the authors of which continue the discussion about the object and purpose of the interpretation of law, the role of the interpreter in the process of interpreting law, assessing the possibilities to verify the current rules of interpretation. The monograph confirms the prospects of a postclassical research program and the importance of researching specific problems of legal science based on postclassical methodology.

Medina to House of Wisdom: Islam and Muslim Contribution to Science of History

This paper explores the pivotal role of Islam and Muslim scholars in advancing the science of history from the early days of Medina to the flourishing intellectual center of The House of Wisdom. This study aims to provide a comprehensive understanding of the evolution of historical methodologies, preservation of historical knowledge, and cultural essence in both pre-Islamic and Islamic realms. Employing a qualitative research approach, the paper analyzes various genres of Islamic historical writing, including Tabaqat, Tarajim, geographical history, and universal history, as well as the methodologies used in documenting and analyzing historical events, such as logical interpretation, natural law interpretation, and speculative interpretation. Through an examination of libraries, scholars, and the transmission of historical knowledge, the paper highlights the enduring legacy of Islamic historiography and its impact on subsequent historiographical traditions. The research findings underscore the significance of Islamic historiography in shaping our understanding of the past and its ongoing relevance in modern academic research, while also suggesting avenues for future research to further explore the rich heritage of Islamic historical scholarship.

Competition law through the lenses of national constitutions: connecting competitive markets with socio-economic and environmental values

Abstract This article analyses competition legislation through the lenses of national constitutions, given that these constitutions establish the foundational structures of national legal systems to which competition laws inherently belong. Building on existing constitutional literature, it posits that competition laws should be construed in accordance with the values promoted in national constitutions. The analysis is situated within the contemporary discourse surrounding the ongoing ‘just transition’ towards a carbon-neutral economy, i.e., a process in which socio-economic values (pertaining to the right to work, right to healthcare, and right to food) and environmental values (pertaining to a clean environment, biodiversity, and reducing emissions) constitute guiding tenets. Such a context invites the question of whether competition laws should be built and interpreted in a manner that facilitates the enhanced integration of socio-economic and environmental values enshrined in national constitutions. These contemplations are pivotal, since law plays a constitutive role in designing socio-economic structures, with the structuring of competitive markets being no exception. In light of this, the paper conducts a review of how national constitutions across the world safeguard competitive markets, socio-economic values, and environmental values. Specifically, the article categorizes the regulatory frameworks identified within all 52 national constitutions that explicitly protect competitive markets alongside socio-economic and environmental values. Subsequently, the paper transitions to an examination of two countries—Poland and South Africa—to elucidate how national competition laws reflect constitutional choices. It demonstrates that their constitutions and competition laws were shaped in a manner that offers a different space for incorporation of socio-economic and environmental values in the interpretation of competition laws. The article relies on an analysis of the texts of national constitutions and competition statutes, as well as selected case law of constitutional courts and ordinary courts. Overall, the article seeks to incite an academic discourse regarding the significance of national constitutions in the realm of antitrust. At the same time, it expands upon the literature concerning economic constitutions, especially regarding the European Union and its Member States.

General Exceptions in the Digital Trade Environment: Challenges and Reforms under Article 20 of GATT and Article 14 of GATS

With the rapid development trend of digital trade today, this article introduces the legal interpretation of Article 20 of GATT and Article 14 of GATS. Firstly, it explains the application standards of this provision in the WTO. Secondly, it combines existing judgments and digital trade laws issued by international organizations to explain the current situation and shortcomings of the application of digital trade in the provision. The article also discusses how digital trade dynamics such as data flow, privacy concerns, and cross-border service delivery complicate the application of these established trade rules. Finally, the article proposes a series of recommendations aimed at refining the interpretation and development of trade laws to better accommodate the unique demands of the digital economy. These suggestions include the need for clearer definitions of key terms within the GATT articles, the establishment of a more robust framework for digital trade within the WTO, and the promotion of international cooperation to create harmonized standards that facilitate digital trade while protecting consumer and national interests. Through these measures, the article advocates for a more adaptive and forward-looking approach by the WTO to ensure that global trade regulations keep pace with technological advancements and market transformations.

The evolution of reproductive leaf dimorphism in two globally distributed fern families is neither stepwise nor irreversible, unless further specialization evolves.

A contemporary interpretation of Dollo's Law is that the evolution of specialized structures is irreversible. Among land plants, reproductive specialization shows a trend toward increasing complexity without reversion, raising questions about evolutionary steps and irreversibility of reproductive complexity. Ferns, exhibit varied reproductive strategies, some are dimorphic (producing separate leaves for photosynthesis and reproduction), while others are monomorphic (where one leaf is used for both photosynthesis and spore dispersal). This diversity provides an opportunity to examine the applicability of Dollo's Law in the evolution of reproductive leaf specialization across plants. We analyzed 118 species in Blechnaceae and Onocleaceae using quantitative morphometrics and phylogenetic comparative methods to test the pillars of Dollo's Law of irreversibility. The evolution of dimorphism in Blechnaceae is neither stepwise nor irreversible, with direct transitions from monomorphism to dimorphism, including several reversions. In contrast, Onocleaceae exhibit irreversibility to monomorphism upon further specialization of fertile leaves for spore dispersal, suggesting that additional specialization, not dimorphism alone, may facilitate irreversibility. These results provide insight into the canalization of fertile-sterile leaf dimorphism in seed plants, where traits like heterospory and ovules lead to further specialization and potential irreversibility. These findings suggest that as new specialized traits evolve alongside pre-existing ones, reversion may become increasingly unlikely.

ANALYSIS OF IMAM MOTURIDI'S LEGAL VIEWS ON SAYING "AMEN" AFTER PRAYER

This article explores the legal views of Imam al-Maturidi on the practice of saying "Ameen" after prayer within the context of Islamic jurisprudence. Imam Maturidi, a prominent theologian and jurist, is well known for his contributions to the Hanafi school of thought, and his interpretations of Islamic law emphasize reason and rationality. This study examines how Imam Maturidi addresses the utterance of "Ameen" following the recitation of Al-Fatiha during the congregational prayer (Salat). The article analyzes the theological and jurisprudential significance of "Ameen" in his writings, particularly focusing on whether it is an obligatory or recommended act, and how it aligns with his broader understanding of prayer rituals. Additionally, it discusses how Maturidi’s views contrast with those of other juristic schools, offering insights into the nuances of legal reasoning in Islamic ritual law. The paper concludes by highlighting the flexibility in Islamic legal tradition, showing how Maturidi’s reasoning offers a bridge between strict adherence and the allowances for personal preference in ritual practice.

Reinterpreting Iddah for Career Women: Najmuddin Tufi�s Maqashid Sharia Approach

This study aims to reinterpret the concept of iddah (waiting period) for career women using a maqashid sharia approach based on Najmuddin Thufi�s thought. Iddah is an Islamic ruling intended to protect family and societal welfare, yet it presents challenges for modern career women. The traditional rules of iddah, which restrict activities outside the home, can impact women�s social and economic well-being, particularly for those who work. This research employs Najmuddin Thufi�s approach, which emphasizes public interest (maslahah), to explore whether the rules of iddah require adjustment for career women without compromising the fundamental objectives of Islamic law. Using a qualitative methodology with a library research approach, this study gathers data from literature on Islamic law, maqashid sharia and Najmuddin Thufi�s theory. The study finds that reconstructing iddah for career women is feasible by applying maqashid sharia principles, particularly through Thufi�s emphasis on maslahah. In the context of working women, traditional iddah rules�which limit activities outside the home�present challenges, especially concerning economic and social well-being. Based on the principle of maslahah, the iddah rule can be adapted without disregarding the core objectives of sharia, allowing career women to continue working during the waiting period as long as they uphold personal dignity and adhere to Islamic legal regulations. This approach offers a contextual and adaptive interpretation of Islamic law that aligns with modern developments while preserving the objectives of Sharia. The study concludes that iddah for career women can be reconstructed to bridge the gap between religious obligations and contemporary socio-economic needs.

Recent debates on wife’s right to judicial separation: an analysis of the traditional and modern interpretations of Muslim family laws in Pakistan

Recent debates on wife’s right to judicial separation: an analysis of the traditional and modern interpretations of Muslim family laws in Pakistan

Extending Statutory Protection to Action Short of Dismissal for Participating in Industrial Action: The Supreme Court on the Right to Strike in Secretary of State for Business and Trade v Mercer

ABSTRACT The Supreme Court in Mercer v Secretary of State for Business and Trade found there was a violation of the right to strike, under article 11 ECHR, when there is no legal protection against detriment short of dismissal for taking part in industrial action. Section 146 Trade Union Labour Relations Consolidation Act (‘TULRCA’) 1992, as currently construed, does not cover this situation. While the Supreme Court agreed with the Court of Appeal that it would not be appropriate to use section 3 Human Rights Act (‘HRA’) 1998 to re-interpret section 146 TULRCA in a Convention-compliant way; unlike the Court of Appeal, the Supreme Court issued a rare declaration of incompatibility under section 4 HRA. It is suggested in this note that Mercer is significant for two main reasons. First and foremost, Mercer is significant for the Supreme Court’s recognition of, and finding of, a violation of, the right to strike. Second, Mercer contributes to the wider debate about the interplay between sections 3 and 4 HRA. The final part of the note reflects on the Supreme Court’s interpretation of Strasbourg case law whereby the Court in Mercer found article 11 ECHR requires stricter protection in this respect for public authority workers.

Interview with Franz Perrez

Franz Perrez is Director-General of the Directorate of International Law at the Federal Department of Foreign Affairs (FDFA), Switzerland. He is responsible for the development and interpretation of international law and ensuring that Switzerland's strategic rights are respected abroad. As a member of the FDFA senior management, Mr Perrez is also jointly responsible for the FDFA's strategic approach and advises the Federal Council, Switzerland's representatives abroad and other Federal Administration offices on international law issues. Prior to his new role Mr Perrez was appointed Switzerland's Ambassador for the Environment and Head of the International Affairs Division at the Federal Office for the Environment (FOEN) in 2010. In this capacity, he headed the Swiss delegations to international environmental and climate negotiations for thirteen years. After studying law in Bern and Paris, Mr Perrez worked at the FDFA's Directorate of International Law from 1993 to 1995. He went on to study at New York University, where he gained a master of laws focusing on international law and completed a PhD thesis on the topic of sovereignty as a principle of cooperation. On returning to Switzerland, he took up a position at the World Trade Organization (WTO) Division of the State Secretariat for Economic Affairs, before joining the FOEN in 2001. Mr Perrez has proven expertise in international law. He has widely published in the area of international environmental law, international environmental governance, the relationship between trade and the environment, and public international law. Since 2008, Mr Perrez has also lectured on international environmental law at the University of Bern School of Law. He served as a panellist on the newest WTO tuna–dolphin dispute between Mexico and the United States, and as Switzerland's Ambassador for the Environment and Chief Negotiator for Environmental Issues, namely climate change, biodiversity, chemicals and waste, he led the Swiss delegation to the Rio+20 conference and to the Paris Climate Change Conference in 2015. He was President of the Basel Convention (COP 11 in 2013) and President of the Rotterdam Convention (COP 8 in 2017) and facilitated the negotiations on mitigation of the Paris Agreement. Through his work within and outside of Switzerland, he has built strong networks around the world and within the Federal Administration.

Restitution of African Cultural Heritage: Revisiting Natural Law Concepts of Statehood and Property in the Context of Colonial Spoliation

Abstract In the late nineteenth century, Western Powers launched military campaigns in sub-Saharan Africa resulting in the colonization of vast territories and the spoliation of cultural property. To justify the conquest, they asserted the supremacy of Western culture and disregarded principles of international law in their dealings with African states, communities, and individuals. This article examines colonialist legal justifications such as the denial of statehood of pre-colonial sub-Saharan African societies, the notion that conquest and spoliation were justifiable, and the belief that African legal systems lacked concepts of property. The article details why these arguments contradict well-established nineteenth-century legal principles, particularly state sovereignty and private property, which together form the conceptual basis for the prohibition of spoliation. The universal nature of those principles allows for the nondiscriminatory application and interpretation of historical law and consequently the protection of African pre-colonial states and private as well as public cultural property.

Possibility of retroactive effect of judicial interpretation of criminal law in the context of its legal certainty

The article addresses the issue of the possibility of retroactive effect of the results of judicial interpretation of criminal law in the context of its legal certainty. It is stated that the effect of a law in time is a manifestation of legal certainty. Predictability of a criminal law does not mean that this law should be understood equally by everyone and be certain and predictable for everyone. Accordingly, courts may interpret criminal law, the result of which should be predictable for the addressee. Based on the case law of the European Court of Human Rights, and also taking into account the theory of “legitimate expectations”, which is widely used, in particular, by the Court of Justice of the European Union, and the activity­based approach to the study of legal phenomena, the author proves that the issue of retroactive effect should be resolved not only with regard to the criminal law itself, but also with regard to the results of judicial interpretation provided by the Supreme Court, which is objectified in the form of legal conclusions set out in the Supreme Court’s rulings, which are binding on all public authorities which apply in their activities a legal act containing the relevant rule of law, and the conclusions on the application of the rules of law set out in the Supreme Court’s rulings are taken into account by other courts when applying such rules of law. If the result of judicial interpretation interprets the criminal law provision that was applicable at the time of the criminal offense more «rigidly», it does not have retroactive effect. If such a result of judicial interpretation is more favorable for the person who committed the criminal offense compared to the interpretation that existed at the time of the criminal offense, then such a result has retroactive effect. The new result of a judicial interpretation of a criminal law provision may have retroactive effect if such interpretation was foreseeable for the addressee of the criminal law and did not violate his legitimate expectations or violate expectations that were not subject to protection for specific reasons.

Interaction of International Humanitarian Law and International Human Rights Law in the context of armed conflicts

It is indicated that the problems of the interaction of international humanitarian law and international human rights law lie in the different historical origins, evolution and application of these two branches of law. The complexity of the interaction between the IHL and the ICRC lies in their extraterritorial action and different personal spheres of application. IHL undeniably applies to international and non-international armed conflicts, regulating the conduct of states and armed groups, while the IHL is recognized as the basis of law in peacetime, but also applies in periods of conflict. Finding the points of intersection between international human rights law (IHRL) and international humanitarian law (IHL) in the context of armed conflicts is the main objective of this section. The merger of these two legal fields, traditionally divided into separate areas of responsibility in peacetime and wartime, has gained unprecedented importance in the legal analysis of modern conflicts. The impetus for the development of the new paradigm was the rapid evolution of the nature of war, characterized by the emergence of asymmetric warfare and the blurring of the boundaries between state and non­state actors. Such transformations in the theater of war require a nuanced understanding of the legal instruments used in this context, which emphasizes the need for this analysis. The urgency of the issue is emphasized by the changing dynamics of international practice. The recognition by the International Court of Justice of the continued applicability of IHRL in conflict and the definition of IHL as lex specialis emphasizes that the legal landscape is in constant flux. At the heart of this analysis is the difficulty of determining the applicability of IHL, a task that is complicated by the problems of classifying conflicts as international or non-international. The principle of derogation - whereby states may temporarily suspend certain human rights obligations - creates an additional layer of complexity, affecting the interpretation and application of laws during armed conflict. Many provisions of international human rights conventions define the protected interest and then provide that any restrictions must be justified by reference to a list of aims, which varies from article to article and treaty to treaty, that are necessary for the achievement of the aim in question and are proportionate to its achievement. In this way, the IHRL provides a mechanism for balancing the requirements of individuals with those of others or the community itself.