Interpretation Of Law Research Articles

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.

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.

Collateral kids: Weighing the lives of children in targeting

Abstract The principle of proportionality under international humanitarian law prohibits an attack if the expected harm to civilian persons and objects is excessive in relation to the anticipated concrete and direct military advantage. In this article we argue that, when applying the principle of proportionality, the incidental harm to a child must be given a higher value as compared to incidental harm to an adult. This reflects the broader framework of international humanitarian law, which creates stratifications amongst different groups of civilians and provides special protection for children in times of war. This aligns with the practice of many militaries, which tends to implicitly assign a heightened worth to the lives of children due to moral and political considerations. Such reasons stem from the perceived vulnerability of children as well as their moral innocence reflecting harmlessness and blamelessness. Indeed, harm to children’s lives tends to generate a greater backlash among the community to which they belong and, as a result, a military disadvantage. We argue that the greater weight assigned to the lives of children in proportionality assessments is not simply a matter of morality or strategic calculations, but in fact a requirement from a more wholistic interpretation of international humanitarian law.

Relevance of Religious Court Decisions on Marriage to National Development Policy Directions: A Legal and Social Analysis

The results show that the Religious Courts play an important role in harmonising Islamic law with national development policies and international legal standards, particularly in the context of protecting the rights of women and children. However, challenges exist in harmonising interpretations of Islamic law with the principles of human rights and gender equality guaranteed by international conventions such as CEDAW. This research uses a qualitative approach with a case study method to analyse the relevance of Religious Court decisions related to marriage to national development policies as well as their relationship to international law. Primary data was obtained through analysis of Religious Court decisions in several regions of Indonesia in the last five years covering marital issues such as divorce, polygamy, child custody, and division of joint property. Secondary data included national policy documents, such as the RPJMN, as well as international legal instruments such as CEDAW. This research identifies the need for progressive reforms in the Religious Courts system, including capacity building of judges in understanding international law, revision of the Compilation of Islamic Law, and strengthening co-operation between relevant institutions. The innovative contribution of this research lies in its in-depth analysis of how the Religious Courts can serve as a bridge between religious law, national development policy, and Indonesia's international obligations.

Conflict And Consensus in Fiqh Siyasah: The Practice of Islamic Law Across Various Cultures

The Acehnese in various regions face the challenge of reconciling Islamic teachings with local cultural realities. Addressing religion-based conflicts is particularly difficult because local cultures often contain norms and traditions that differ from Islamic teachings. This research aims to explore how the dynamics of conflict and consensus in fiqh siyasah shape the cultural life of the Acehnese. The research consolidates previous studies using a Systematic Literature Review (SLR). The findings indicate that the practice of siyasah jurisprudence is highly relevant in fostering social solidarity and tolerance. Local traditions and customs hold deep significance for the Acehnese community; however, conflicts often arise due to differences in approaches and interpretations of Islamic law, leading to tension, mistrust, and suspicion among individuals. Presently, religion-based conflicts are mediated solely by Sharia courts, raising concerns as the prevailing consensus favors a socio-cultural approach. Such resolution methods generate diverse perspectives, as decisions made by customary institutions may not endure in a dynamic socio-cultural context. Although the Acehnese community firmly adheres to a culture-based approach, religious issues remain difficult to compromise. These findings imply a need for harmonization between local customs and interpretations of Islamic law to reduce conflict.

PROBLEMS OF JUDICIAL ACTS REVIEW IN THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

The work is devoted to studying the problems of reviewing court decisions of lower courts by the Supreme Court of the Republic of Kazakhstan. This article examines the control of higher courts over lower courts' activities in the system to ensure the rule of law in case consideration and decision-making. The procedure of reviewing judicial decisions by a higher court that have become effective and those that are not effective in the order of cassation and supervisory review, as well as representations of the President of the Supreme Court, and protests of the Prosecutor General of Kazakhstan, are investigated. Problems of citizens' implementation of their constitutional rights to judicial protection and appeals against court decisions are highlighted. The grounds for reviewing judicial acts that have entered into force, the range of subjects entitled to apply for review, criteria for the admissibility of appealing judicial acts as well as procedure for preliminary consideration of complaints and protest by a judge alone is shown. The analysis of these issues allows us to conclude that the current grounds and procedure for reviewing judicial decisions of the appeal and cassation courts based on the submissions of the Chairman of the Supreme Court and the Attorney General of the Republic of Kazakhstan firstly hinder the realization of citizens' constitutional right to judicial protection, including the right to appeal against judicial decisions, and secondly prevent the formation of consistency in judicial practice. The lack of guidance to lower courts on reviewing judicial decisions by way of cassation and supervision has once again convinced courts of their inability to achieve consistency in the interpretation and application of law, as well as failure to contribute effectively to citizens' exercise of the right to justice. The paper provides a critical analysis of judges, lawyers, and legal experts on the current process for the Supreme Court of the Republic of Kazakhstan to review appeals and cassation court decisions. At the end of the paper, the author draws conclusions and makes suggestions regarding the enhancement of the constitutional right to judicial protection and uniformity in court practice.

Interpretation and Application of Criminal Law Regarding Blasphemy Under Article 156a of the Criminal Code

The offense of blasphemy is complex and confusing due to its three distinct definitions: offense according to religion, offense against religion, and offense related to religion. This lack of clarity results in no clear boundaries for defining what constitutes blasphemy. This article explores the legal interpretation of blasphemy through an analysis of various court decisions and the opinions of religious leaders. Utilizing normative research methods complemented by field data from interviews with religious leaders, the study reveals that Article 156a of the Criminal Code lacks a precise definition of blasphemy, leading to broad and varied interpretations. The subjectivity of determining blasphemy is evident, as it often depends on the identity of the offended party. Additionally, resolving blasphemy cases, such as those involving deviant sects, necessitates theological dialogue rather than immediate recourse to punitive measures. The article notes that judicial decisions in blasphemy cases frequently rely on the testimony of religious experts, sometimes without sufficient consideration of the expert’s qualifications or the quality of their explanation of blasphemy.

When Socialist Chinese Law Meets Common Law Interpretation: Mandatory Sentencing and Mitigation Under the Hong Kong National Security Law

Abstract In HKSAR v Lui Sai Yu [2023] HKCFA 26, the Hong Kong Court of Final Appeal (CFA) delivered its first judgment on the mandatory sentencing regime under the newly introduced National Security Law (NSL). Adopting a common law approach to interpreting the NSL, the CFA held that mitigating factors not listed in the NSL cannot bring about a sentence below the minimum prescribed by the relevant provision. In this article, we propose an alternative approach to interpreting the NSL. We argue that, contrary to the CFA’s rejection of any reference to Mainland Chinese laws in constructing the NSL, both a common law purposive approach and the principle of ‘convergence, compatibility and complementarity’—one of the working principles in the enactment of NSL—would support such reference. The implications of our proposed approach would be to (i) recognize that the sui generis nature of the NSL, being a Chinese national law applied in its Special Administrative Region of Hong Kong, necessitates the consideration of relevant Chinese legal norms; and (ii) allow for a broader range of mitigating factors—those recognized by both Hong Kong common law and Mainland Chinese law—to be applied to the minimum sentencing regime in the interest of fairer and more principled outcomes for defendants.

Do planning practices hinder on-farm diversification in peri-urban Mediterranean France?

At the crossroads of spatial planning and agriculture, this article explores how planning practices impact on-farm diversification strategies in peri-urban Mediterranean France. It focuses on farm building permit applications, statistically analyzing a database of 860 buildings applied for and interviewing local authorities and farmers’ representatives. Results show the large proportion of applications related to reterritorialization of food systems, development of recreational activities, and production of green energy. These on-farm diversification trends highlight the transformation of peri-urban areas from a natural or agricultural landscape into a multifunctional landscape, posing several planning challenges. Planners don’t know how to assess whether a new building is really essential for farming, or to find the right trade-offs to support farming dynamics while limiting soil sealing. Their assessment criteria generally favor large, full-time, and economically viable farms. Comparing two provinces’ planning practices, we observe significant differences in interpretation of national law, with incoherent or unharmonized criteria applied especially when assessing professional farming activities, new dwellings, and solar energy projects. We also highlight two potential obstacles to farmers’ generational renewal and agroecological or food transitions: i) lack of transparency regarding the rules and the decision-making processes behind building permit assessment, and ii) the frequent rejection of applications for multi-purpose premises and lightweight, mobile, or dismantlable structures. Such results point to the role of planners in transforming peri-urban landscapes and the need for more consistent regulation of new farm buildings, supporting and not hindering farm adaptation strategies and the multifunctionality of peri-urban areas.

Peculiarities of interpretation in the Islamic legal family

In this article, the author examines the issue related to the peculiarities of interpretation in the Muslim legal family. The author notes that there is no term in the Islamic legal doctrine that would be completely identical to the concept of «interpretation of law». The closest term in meaning is «ijtihad», the meaning of which can be defined as the activity of a Muslim jurist to resolve religious and legal issues in the absence of an unambiguous answer in the main sources of Islamic law - the Koran and the Sunnah of the Prophet Muhammad. At the same time, the concept of Ijtihad is broader than the concept of interpretation of law, but interpretation is fully covered by Ijtihad. The author comes to the conclusion that the main characteristic features of interpretation in Muslim law are a special subject composition of interpreters, to whom a number of requirements are imposed (detailed knowledge of the provisions of the Koran and the Sunnah of the Prophet Muhammad; a high level of proficiency in Arabic; knowledge of the theory of cancellation; knowledge and ability to apply methods of deriving legal norms from primary sources; knowledge of issues on which authoritative Muslim scholars have agreement), a wide range of methods (qiyas, istislah, istishab, az-zarayi, istikhsan, etc.) and methods of interpretation (grammatical, logical, historical, systematic), a special sequence of actions in the process of interpretation, as well as attitude to the result of interpretation as to probabilistic rather than absolute knowledge.

Against the Instrumentalization of Law: Justice for the Convicted in the Brześć Trial

The acquittal after ninety years of Prime Minister Wincenty Witos and others convicted in the Brześć trial is a landmark ruling. The author seeks to demonstrate the multifaceted nature of this Supreme Court verdict in the context of the implementation of transformational justice with regard to judicial crimes of the communist period. The gloss approvingly assesses the interpretation of the criminal law adopted by the Supreme Court including, in particular, Article 97 of the Criminal Code of 1932.

DIREITOS HUMANOS E LIMITES À JURISDIÇÃO DOMÉSTICA

Work presented with the goal of examining the relationship between Human Rights and Sovereignty from a different approach to the the principles of sovereignty and nonintervention. Beyond that, it has been discussed the possibility to deal with the human rights subject from an international stance in as much as it has not been an issue to be dealt with as an internal affair of a state anymore. From the study, it might be concluded that a new interpretation of human rights laws and principles of international law, such as the nonintervention might strenghten the human rights protection system. The deductive method was adopted through the content exam and bibliographic review of books and articles and analysis of decisions International Courts related to the topic addressed.

Diversion or death? The moral framework shaping bifurcated punishments for drug offences in Indonesia

Background As the UN urges states to move from harsh punishments for drug offences towards treatment programmes, Indonesia has adopted a bifurcated penal policy. Most of those convicted are sentenced to imprisonment or death, but some ‘minor’ offenders are diverted to drug treatment centres. We explore the moralities that shape drug policy, justice professionals’ interpretation and application of laws and policies, and judgements about who is deserving of diversion. Methods We draw on experiences and perceptions of 136 Indonesian criminal justice professionals, through in-depth qualitative interviewing and focus groups, to reveal the moral landscapes shaping policy and practice. Results Justice narratives blur penal concerns with moral judgments about drug offending, with normative responses shaping punishments in law and practice. While there is some compassion for ‘minor’ drug offenders, driving rationales for diversion, drug traffickers are regarded as morally deserving of prison and capital punishment, with traditionalist perceptions of harm amplified by a purgative rationale. Conclusion This article highlights the analytical potential of moralities such as ‘compassion’ and ‘traditionalism’ in criminal justice research and policy in Southeast Asia. Understanding the formation and navigation of these normative values may assist in challenging harsh penal policy in Indonesia and the wider region.

Economical rights versus God’s rights: criticising of the implementation Shariah economic in Indonesia

PurposeThis study aims to evaluate the impact of Law No. 11 of 2018 on Islamic Financial Institutions in Aceh, Indonesia. It also aims to understand the balance between the economic rights of individuals under Shariah law and the broader concept of God’s rights, as interpreted by this legislation. In addition, the research argues that the implementation of Law No. 11 of 2018 is untimely, with a focus on examining its influence on the cumulative abnormal return (CAR) of Shariah banks and its slight contribution to the direct economic impact.Design/methodology/approachThis study adopts a mixed-methods approach that integrates qualitative and quantitative analyses. The qualitative aspect uses a black-letter law approach for legislative scrutiny, whereas the quantitative aspect assesses economic indicators and firm performance using an event study analysis. The study also includes a two-tailed assessment to test hypotheses related to the law’s direct impact on institutional performance.FindingsThe study reveals that Law No. 11 of 2018 had minimal impact on national-scale corporate performance and a notable increase in poverty indices in Aceh, indicating a potential misalignment between the law’s intention and its economic consequences. The results also show the law’s ineffectiveness in significantly influencing the CAR of Islamic banks, highlighting a clash of norms and a lack of substantial economic substance in the implementation of Shariah compliance.Research limitations/implicationsThis research is geographically and legally focused on Aceh, Indonesia, with a short-term analysis that may not fully capture the long-term impacts. It primarily considers the stock price performance of specific institutions for quantitative analysis and identifies potential clashes and disharmony-in-law implementation from a qualitative perspective.Practical implicationsThe findings suggest the need for legal frameworks that better comply Shariah principles with economic realities. Regional governments should consider modifying policies to balance religious values and economic objectives.Social implicationsThis research highlights the importance of balancing religious obligations with economic rights, indicating that strict interpretations of religious law can lead to adverse socioeconomic effects.Originality/valueThis study is unique in its comprehensive analysis of the convergence between religious law and economic rights, offering insights into the challenges faced in implementing Shariah-based economic policies in diverse economies, such as Indonesia.

Climate Change Mitigation through Civil Procedure? Justiciability in Two Nordic Climate Cases

Abstract Although the phenomenon of climate change litigation has flourished in certain European countries, it has so far been limited in the Nordic countries. A reason might be that the Nordic countries do not have a strong tradition of judicial review or rights-based litigation. The role of the courts was long considered to be less about controlling that the legislature lived up to constitutional and international obligations, than ensuring the realisation in practice of the substantive law, by resolving concrete disputes. Through the analysis of issues of justiciability in one Norwegian and one Swedish climate case, this article discusses the role of the judiciary in climate cases. It is argued that the cases illustrate a tension between on the one hand the right to access to a court and judicial review, and on the other, a more limited and traditional understanding of the role of the court, which focuses on the resolution of concrete disputes. At the same time, the cases are considered to indicate that climate change litigation can bring about change in the judicial interpretation of procedural law.