Notion Of Law Research Articles

Application of Muslim Personal Law in the Kenyan Courts: Problems and Prospects

Abstract This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis’ courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.

Position of Adopted Children in Leaving Appointment Parent's Assets According To Islamic Law, Civil Law & Custom Law

In Islam, adoption is known as tabann, Wahbah al-Zuhaily gives the understanding that adoption (tabann) is the taking of a child by someone to a child whose lineage is clear and then the child is assigned to him. One of the supporting factors for the realization of a household in accordance with this Islamic concept is property which is Zinatu al-Hayat, both movable and immovable property, even including securities and intellectual rights Inheritance rights that apply to adopted children to property adoptive parents in Islamic law, civil law, and customary law. Method This approach uses a secondary approach that is normative law or literature writing with a statutory approach. Indonesia adheres to a plural legal system, which means that Indonesia adheres to more than one legal system. This also makes inheritance law divided into three legal systems, namely Western Law, Islamic Law, and Customary Law. In general, the notion of inheritance law is a legal rule that regulates the transfer of property rights, which is the overall rights and obligations of the person who inherits to his heirs and determines who is entitled to receive it. Indonesia adheres to several systems of inheritance law including the civil law system, Islamic law and customary law. In civil law, adopted children still get inheritance rights from their adoptive parents. Then in customary law, the inheritance system used is dependent on the custom where the adopted child lives.

Going Far by Going Together: James M. Buchanan’s Economics of Shared Ethics

We explore themes in Nobel Prize–winning economist James M. Buchanan’s work and apply his Ethics and Economic Progress to problems facing individuals and firms. We focus on Buchanan’s analysis of the individual work ethic, his exhortations to “pay the preacher” of the “institutions of moral-ethical communication,” and his notion of law as “public capital.” We highlight several ways people with other-regarding preferences can contribute to social flourishing and some of the ways those who have “affected to trade for the public good” might want to redirect their efforts. We show how Buchanan’s work has considerable implications for business ethics. Just as his economic analysis of politics changed how we understand government, we think his economic analysis of ethics can (and should) change how we understand business.

THE BOREL CHARACTER

AbstractThe main purpose of this article is to define a quadratic analogue of the Chern character, the so-called Borel character, that identifies rational higher Grothendieck-Witt groups with a sum of rational Milnor-Witt (MW)-motivic cohomologies and rational motivic cohomologies. We also discuss the notion of ternary laws due to Walter, a quadratic analogue of formal group laws, and compute what we call the additive ternary laws, associated with MW-motivic cohomology. Finally, we provide an application of the Borel character by showing that the Milnor-Witt K-theory of a field F embeds into suitable higher Grothendieck-Witt groups of F modulo explicit torsion.

Between Religion and State

Abstract On the basis of Martin Luther’s theologia crucis in the Heidelberg Disputation (1518), the Lutheran concept of law in the 20th Century is examined. Luther’s distinction of religious and civil dimension of law with its religious restriction to a convicting function regarding the sin is received in the Luther-Renaissance of the 1920 and 1930s. The sample of Emanuel Hirsch (1888–1972) gives insight into the deeply ambivalent character of the Lutheran concept of law before World War II which combined a profound theory of Christian subjectivity with a theory of state promoting German nationalism in opposition to western democracy. The moderate theology of Wolfgang Trillhaas (1903–1995) reflecting the experience of the Nazi-Regime de-potentializes the Lutheran prejudice against the law in order to achieve new democratic perspectives on the notion of law in dogmatics and ethics. Thus, an affirmative position is established despite a remaining ambivalence in contemporary Lutheran Protestantism.

Criminalisation of Possession of Narcotics in Poland

The subject of this paper is the issue of the criminalisation of the possession of narcotics in Poland. Particular attention is paid to the institution of the optional termination of criminal proceedings in cases when the person who has committed the offence is in possession of an inconsiderable amount of narcotics for personal use. The aim of the study is, among other things, to demonstrate how this institution functions in practice and to examine whether the Polish regulations are compatible with the international and the European regulations. The author first presents a historical outline of the criminalisation of offences involving an unlawful possession of narcotics, and then develops the idea of what should be understood by ‘possession’ of narcotics while also addressing the issue of ‘possession of narcotics within one’s own body’. In the further section of the paper, the author analyses the notion of ‘an inconsiderable quantity of narcotics’, presenting views expressed in the literature and showing disparities in interpretations of this notion in the case law. In the final section, the author presents conclusions and an assessment of the current state of the relevant Polish legislation.

Twining’s Tower and the Challenges of Making Law a Humanistic Discipline

This article provides a survey of the life and scholarship of William Twining, focusing largely on his contribution to the broadening of legal education and scholarship. Part I reviews his background, personality and education, then explores the significance of Africa and his anti-colonialism, the inspiration of American legal realism, his teaching in Africa, Belfast, Warwick and UCL, his law reform efforts and his scholarly output. Part II examines his intellectual hallmarks and his struggle to recast law as a humanistic discipline. Part III considers the current efficacy of the notion of law as a humanistic discipline with law schools as purveyors of humanistic education. 
 Keywords: William Twining; legal education; legal biography; intellectual history; colonialism; postcolonialism.

Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights

Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

Legal Framework for the Development of Nuclear Energy in Nigeria: Challenges and Prospects

This study critically examined the legal framework for the development of nuclear energy in Nigeria. It analyzed the concept and historical development of nuclear energy, highlighted the benefits and disadvantages inherent in the development of nuclear capacity and the utilization of nuclear resource, it examined the notion of nuclear law, its historical development, and basic principles and objectives of nuclear law. It also examined the legal and regulatory framework, international, regional and national, for the development of nuclear energy in Nigeria, and the state of nuclear law and regulations in other jurisdictions, and identified the many-faced challenges faced by Nigeria on the road to the development of nuclear capacity, and the prospects of developing nuclear energy capacity. This study relied on both primary and secondary sources of information. The primary sources included international conventions, standards and regulations, as well as local enactments and regulations. The secondary sources included books, journal articles, reports, conference and seminar papers and other publications of notable authors, scholars and writers. Information obtained from these sources were subjected to critical analysis. This study found that greatest benefit of nuclear energy utilization, in Nigeria and anywhere else, is to be found and derived in the peaceful uses of nuclear energy, rather than the more notorious militaristic purposes. This study also emphasized that nuclear energy can be used for electricity generation, agricultural development and can also aid medical improvement. Again, nuclear energy utilization is more environmentally friendly, and for future purposes, more economically viable. Even with potentials, nuclear energy poses certain risks which are avoidable and can be properly managed. The management of these risks must be within an effective and functional legal and regulatory framework to avoid conceivable difficulties. Regulatory bodies, therefore, have a huge role to play in the area of the development of nuclear law both at the international and municipal level. They formulate policies, regulations and guidelines for the safe and secure utilization of nuclear resources and technology. The study found again that Nigeria increasingly has expressed interest in developing nuclear capacity, albeit, only for civil purposes, and not for generating nuclear weapons. Though Nigeria presently does not have any nuclear facility or power plant, it is a member of the International Atomic Energy Agency (IAEA) which is the primary international nuclear energy regulatory body. Nigeria has also developed an international standard legal regime on nuclear energy development, she has also entered into partnerships with several nations and institutions to help her develop local nuclear capacity contributing to Nigeria’s socio-economic development. This study concluded that to fully develop and utilize nuclear capability in Nigeria, there must be continuous compliance with and development of international and domestic safeguards. It is, thus, hoped that this study will be of valuable contribution to the existing corpus of legal knowledge.

Lo justo en el testimonio. Ley, justicia y violencia en los cuentos de João Guimarães Rosa

Our article undertakes an analysis of three short stories by Brazilian writer Joao Guimaraes Rosa — «Irmaos Dagobe», «Fatalidade» and «Meu tio, o Iauarete» — through the approximation between law studies and literary criticism. The legal dimensions of the narratives are thought through the notions of Law, Justice and Violence. The three short stories share the fact that they present fictional situations in which there is a conflict, often insoluble, between different legal systems and social values ​​related to the notions of «justice». In each story, the metaphorical and social developments of such conflicts are analyzed. Our reading is based on Rosa´s brazilian literary criticism, in particular the readings made by Antonio Candido (2001), Eduardo F. Coutinho (2013), Paulo Ronai (2017), Silviano Santiago (2019), Walnice Nogueira Galvao (2006) and Lourival Holanda (2019). The article is divided into two parts: in the first, there is a presentation, for the reader unfamiliar with the work of the Brazilian writer, of his production context and the main characteristics of his work. In the second part, the three stories are analyzed according to the proposal of the relations between law and literature.

The role of the natural law in the French second colonial Empire. The example of the French colonial law in Algeria (1830-1930)

The article examines the role played by the natural law in the History of French colonial law during the Second French colonial Empire. We analyse how the notion of the natural law, which was perceived as an instrument of emancipation during the French Revolution, became an instrument of legal acculturation in the French colonial law in Algeria. We focus the attention on the case of Algeria during the period 1830-1930, for the reason that in this colony, the French tried to apply a policy of legal assimilation that tried to modify the Muslim law and the Kabyle customary law, making them more similar to the French law. The natural law had an important role in three phenomena: the implantation of private property, the codification of the Kabyles’ customs and the Muslim Law and the reformation of the customary law in the matters of inheritance and marriage.

LIFE IMPRISONMENT AND HUMAN DIGNITY

Recognition of human dignity and respect for fundamental human rights cannot be restricted to a single category of human beings. The idea that anyone could be considered non-persona, to whom an “Enemy criminal law” may be applied, is incompatible with an ultima ratio liberal notion of penal law. The humanisation of criminal law is manifested in the growing number of contemporary societies that have abolished or limited the death penalty. Nevertheless, life or long-term imprisonment sentences still prevail, and are on the rise, despite lacking theoretical or philosophical justification in the laws that prescribe them. In this article we will attempt to answer various questions regarding a possible justification for life imprisonment. Different theories will be examined regarding the goals of sentencing in order to determine, on discussing each theory, whether it is possible to justify life imprisonment or other long-term incarceration. DOI: http://dx.doi.org/10.21017/Rev.Repub.2021.v30.a103

Transhumanism and law: from human nature to self-determination as the foundation of human rights

This article analyzes the general evolution of human rights due to the influence of transhumanist ideas, which were already present in 1948. Specifically, we will consider their denial of human nature, and self-determination as the new cornerstone of the legal order. We will see how nature is no longer considered the foundation of law, and instead how the focus is now on self-determination and the possibilities of technology. Although the 1948 Declaration of Rights has not changed, the anthropological conception has been modified, and new rights have been introduced, thanks to the interpretation made by the courts. The proposal is to recover the notion of human nature and natural law, which offers a universal terrain for dialogue and inspiring keys to find the true rights of the person and the good of society.

THE LEGAL REGIME OF THE LIABILITY OF THE ADMINISTRATORS OF THE COMMERCIAL COMPANIES THAT ARE ALSO THEIR EMPLOYEES

From the logical and unitary interpretation of Law no. 31/1990 (art.72 and art.166), the liability of the administrators and auditors of the companies, who are at the same time their employees, is a civil liability - in the broad sense of the notion of civil law by applying the rules of the mandate. From the perspective of the patrimonial liability of the employees, according to the Labour Code, the ways of recovering the damage caused to the company to which you are subordinated in the employment relationship differ from the ways of recovering the damage in case of non-compliance of the mandate's limits. Analyzing the two types of liability, in the situation where the administrator also has an employment contract with the company, we conclude that the practical solution and in accordance with the concern of the legislator to prioritize the application of special law is to assess the conditions of liability of the administrator to the rules from the mandate provided by art. 2017-2024 Civil Code and Law no. 31/1990, and regarding the way of establishing the liability and recovering the damage, the provisions of art. 253-259 Labour Code.

Сущностная характеристика правового эксперимента

The phenomenon of a legal experiment and current problems that are of their nature are researched here. The notion of law is based on the instrumental approach and identified as the new tendency of law-making development which lies in necessity to identify possible effects that a regulatory act can have towards social relationships. It is alleged that all jurisprudence practice is made up of estimation procedures. The own interpretation of a “legal effect” is given here. It is identified that some rules of law are not always possible to predict their influence, therefore those who are given law-making authority have to use the mechanism of a legal experiment in their practice. The approaches to understanding of legal experiment that there are in the theory of state and law. They are set out and analyzed extensively. The definition of legal experiment from existing legislation was explored. The approach to understand the legal experiment was formulated. On the one hand, this approach accumulates all previous formulation in this area, but the other hand it proposes new view of nature legal experiment. In the source base has been invested the regulation of existing domestic legislation and also doctrinal writings in this area including foreign-language. There is innovativeness to research the legal experiment here. Innovativeness lies in the integrated vision of nature of legal experiment. It has great mythological importance to all legal science. The conclusion of understanding of legal experiment as a method of legal prediction has been done. There was defined the place of legal experiment in the semantic row of the theory of state and law. The nature of understanding of legal experiment has been determined on the basis of author approach.

Finding Design Patterns in Law: An Exploratory Approach

Currently, the importance of design is recognized across society and advocated for in ethical guidelines surrounding the development of information systems. The concept of design patterns was originally introduced by design theorist Christopher Alexander, to identify and collect reusable design solutions for desired social interaction in physical spaces. The concept was then adopted by software developers to enhance problem solving through collecting functional design solutions. Our exploration is motivated by the notion of law as abstract architecture meant to regulate social interaction. We hope to transfer the concept of design patterns to law, as such analytical practice would facilitate the identification of recurring good solutions across different fields and, ultimately, the repeated practice of pattern recognition would contribute to law’s proactive capabilities. We engage in an exploratory approach to describe the conceptual evolution of design patterns from architecture to software and to legal design. We discuss the process of pattern recognition as a collective iterative process and then proceed to identify three examples of legal design patterns in law. Following this exploration, we perceive design patterns particularly useful for identifying procedural structures and conclude by discussing the advantages of the approach for socio-legal research on proceduralization and automation of law.

Direito Constitucional Tributário Comparado Latino-americano: uma Perspectiva Copernicana

Shortly after brief data regarding the notion of Comparative Law, its history, and its functions, this article focuses on Latin-American constitutions, to carry out a study of Constitutional Tax Law, by comparing some of the most relevant principles of Latin-American constitutional tax systems, in an authentic microcomparison effort. In terms of the principles that make the value and the principle of Legal Security, it investigates the principles of Legality (Generic and Tax), of Non-retroactivity (Generic and Tax) and of Tax Anteriority. In terms of the principles that make the value of Justice, it analyzes the principles of Equality (Generic and Tax), of Contributive Capacity, of Existential Minimum and of Prohibition to Confiscation. Finally, it carries out a comparative synthesis, to extract the appropriate conclusions from the comparisons, drawing a broad and comprehensive panorama, by a perspective that calls “Copernican”, of Latin-American Comparative Constitutional Tax Law.

КОНСТИТУЦИОННО-ПРАВОВЫЕ ДИСКУССИИ ПРИ ПРИНЯТИИ ОСНОВНОГО ЗАКОНА ФРГ 1949 года

With the split of Germany in the Western Länder, the constitutional process of framing the new political and legal reality in the Basic Law of the Federal Republic of Germany of 1949 begins. In considering and discussing the draft Basic Law of the FRG, the Parliamentary Council chose the term "basic law" instead of "constitution". The choice of this expression was intended to emphasise that the task of the Parliamentary Council was not to create a legal regime for the whole of the united German state, but only for a particular part of it, which consisted of the eleven Western states. In line with this, the German statesman G. Peters pointed out that it was the title "Basic Law" which was intended to express the will of the German Länder not to create any new "Western German State", but "to construct only something temporary and territorially limited until such time as the Federal Republic of Germany". Thus, the notion of the Basic Law was intended to denote not a part, but a general arrangement of state life; not a permanent and durable, but a temporary order in the western part of Germany. This attribute also explains the differences with the concept of the constitution. The preamble to the Basic Law contains the fundamental ideas of German unity and is the basis for its interpretation in the spirit of its founders. As the main aim of the Basic Law of the Federal Republic of Germany the preamble indicates the need to safeguard the national and state unity of the German people. It seeks to establish a new free democratic state order. The legal basis for the unification of Germany was laid down in Article 23 of the Basic Law. This article, which listed the states of the FRG, stipulated that "in the remaining parts of Germany, the Basic Law shall take effect upon their accession". Consequently, according to this article, other parts of Germany could join the Federal Republic of Germany. The Basic Law of the FRG enshrined the idea of the formal constitutionality of German unification. Article 146 stipulated that a new constitution, adopted by "the free decision of the German people," was to be drawn up. The option of unification of Germany under Article 23 was envisaged by the Basic Law of the Federal Republic of Germany equally with the possibility of unification under Article 146 of the Basic Law. This is confirmed by the position taken by the Federal Constitutional Court in its judgment of 31 July 1973: "A provision of Article 23 of the Basic Law of the Federal Republic of Germany has a constitutional legal value of its own and is one of the essential precepts of the Basic Law. Therefore, the FRG is obliged, as soon as the legal possi-bility for the accession of the 'remaining parts' of Germany arises, to do everything necessary to bring about the unity of Germany. Thus, the constitutional and legal basis for the unification of Germany was laid down in the Basic Law of the FRG of 1949. Democracy and freedom in a Western-oriented environ-ment became the priority in the Federal Republic of Germany. The idea of the unity of the country, however, was not discarded and remained one of the leading objectives of the state in the Basic Law. The main guarantor of unification was the preamble, which stated the aim of achieving unity of the country, while Art 16, Art 23, Art 116, Art 146 set out the legal mecha-nisms for the future unification of Germany.

L’Accord sur le taux d’imposition minimum des multinationales et la taxation des entreprises numériques : une étape supplémentaire vers la constitution d’un ordre fiscal international autonome

Almost a century from its foundation, the international tax regime intended as a set of principles and rules governing cross-border income taxation is on the brink of unprecedented change. Due to the evolution in the ways MNEs conduct their business, on the one hand, and the proliferation of aggressive tax planning schemes and excessive tax competition, on the other, on 8 October 2021 more than 130 jurisdictions participating in the OECD Inclusive Framework have agreed to the OECD Two-Pillar Solution to address the tax challenges of the digital economy. Indicatively, the OECD Pillar One aims at reallocating taxing rights among countries by means of a new connecting factor (or nexus) based on the role that markets play in the modern economic context (hereby seeking to keep up with the evolution of digital companies’ business models). The approach of allocating taxing powers to states relying on the physical presence criterion [ permanent establishment] has become anachronistic given the possibility for (digital) companies to derive profits in a jurisdiction without tangible production factors located therein. The OECD Pillar Two, instead, introduces a 15% minimum global taxation to limit excessive tax competition among states and purports to promote a better allocation of investments at the global level, ideally enlarging residence states’ taxing powers. Noticeably, the second pillar also represents a major step forward in terms of harmonizing the computation of corporate taxable base. This contribution, after shortly describing the fundamental notions of international tax law from an international public law angle, traces the crucial steps that eventually led to the 2021 reform and presents an overview of the functioning of both the OECD Pillars.