Positive Legislation Research Articles

Fiscal and Monetary System Reforms in the Republic of Croatia Under Influence of European Integration Processes

Through a continuous reform of its fiscal system (especially the tax system), the Republic of Croatia has harmonized them with those of EU countries, in keeping with European integration processes and the intention to become a full EU member. Certain differences are still in place (tax rates, certain tax incentives, benefits and exemptions), but they are soon to be harmonized as well in an ongoing tax system reform. As for the monetary segment, Croatia is already relatively well harmonized with EU standards. This harmonization is primarily based on a stable exchange rate of the national currency and low inflation. The legislation is for the most part in line with the country's endeavours in this area. Certain segments of monetary finances, especially those with long-term effects such as capital transfers etc., which are not yet adequately regulated through positive legislation, will soon have to be harmonized with the EU acquis.

Islamic Law and the Challenge of Modernity

This book includes eight articles on various aspects of Islamic law in themodern world, as well as an introduction by the two editors. The articles grew out of a symposium held at Georgetown University in 2001 under the title of“Arab Legal Systems in Transition.” Despite the book’s title, however, itdeals exclusively with the Arab world.That said, the articles are generally very interesting and, in some cases,provocative. Wael Hallaq’s article is the most provocative, for he suggeststhat because the traditional socioeconomic infrastructure that supported theShari`ah as a social institution in the pre-modern world has vanished in theface of the centralized state, the Shari`ah cannot be restored without revolutionaryinstitutional changes in the Arab state that would, at a minimum,give religious scholars the institutional independence to formulate a legitimatevision of Islamic law.
 While there can be little disagreement with Hallaq’s observation that thetraditional institutions are gone and will not return, I am not sure why heassumes that the only type of legitimate Islamic law is one formulated by anindependent class of jurists. May it not be the case that a centralized state,subject to democratic controls, could formulate positive legislation that conformsin a meaningful sense with the Shari`ah’s principles? After all, legalmodernity has generally meant the rise of positive law at the expense ofjudge-made law, with the former greatly eclipsing the latter in importanceand prestige. It is highly improbable that Islamic countries could, even ifthey wished, escape the need for ever more positive legislation to cope withthe unique problems posed by modern social organization ...

Derechos humanos y sexualidad en la Argentina

Este artículo presenta un panorama de la situación de los derechos que tienen que ver con la sexualidad, en la Argentina contemporánea. Basándose principalmente en la legislación positiva, se presenta en primer lugar una síntesis del sistema legal y político, resumiendo a continuación el proceso de inclusión de los derechos sexuales, sobre todo desde 1983, cuando se recuperó la democracia. Las temáticas abordadas son: igualdad civil y conyugalidad, orientación sexual e identidad de género, reproducción, aborto, violencia de género y violencia sexual, VIH/sida, y explotación y trabajo sexual. El artículo concluye con una reflexión sobre las principales deudas pendientes.

Una ética para los cristianos: el fundamento bíblico de la moral calvinista

In this paper, I discuss the protestant contribution to the modern concept of autonomy on the basis of an analysis of John Calvin’s moral theology. I show that Calvin affirms our incapacity to know and want what is morally good, as expressed by natural law. Such incapacity is compensated by the biblical mandates that, according to Calvin, should be incorporated into the positive legislation of Christian republics. In view of all this, I conclude that Calvin is far from the Kantian idea of autonomy which defines out Modernity.

Law and Justice in Korea: South and North (review)

Reviewed by: Law and Justice in Korea: South and North Tom Ginsburg (bio) Law and Justice in Korea: South and North, by Chongko Choi. Seoul: Seoul National University Press, 2005. x, 533 pp. Illustrations, bibliography, index. $30.00 cloth. Korea's legal tradition, like others in East Asia, remains poorly understood by modern comparative lawyers outside the region. In taxonomies of legal systems, Korea is usually treated as a variant of the Chinese or Japanese tradition, or alternatively as a pure transplant from Western law, with little original to offer in terms of doctrine or theory. In this volume, Chongko Choi, a prolific and wide-ranging legal scholar at Seoul National University, provides an important corrective by drawing attention to Korea's distinctive legal history. The volume consists of Choi's collected English-language papers on legal history and jurisprudence. While it is not designed to be a comprehensive overview of the topic, Choi's wide interests cover significant ground, including such diverse topics as an examination of the imagery of the Japanese and Korean supreme court buildings, a comparison of North and South Korean constitutions, and an account of the treatment of Korea by leading comparative lawyers in the West. The heart of the book is a temporally organized series of essays on traditional Korean law, modernization, and the contemporary legal system. Choi makes a number of interesting and effective moves, such as tracing Korean constitutional history since independence through the lens of Church-state relations, which illuminate Korean law in a new way. Choi's major contribution is to situate Korean law in the broader context of an East Asian legal tradition, which he describes using the medieval European concept of the jus commune or common law. He sees the various East Asian legal systems as sharing certain institutional features and Confucian ideas about law, as well as a shared legal history. Choi traces the influences of Chinese Confucianism on Korea, the distinctive Korean adaptation of those influences, and the longstanding transfer of legal ideas from Korea to Japan, a flow whose direction [End Page 126] was reversed only in the waning years of the Yi dynasty. At the same time, he does not ignore Western influence, for example, the impact of the work of German scholar Johann Bluntschli on the Daehanguk Gukje promulgated by King Kojong in 1879, or the distinctive contributions of American scholar Owen Denny in developing Korea's claim for statehood in the international legal sphere in the late nineteenth century. Placing Korea in the context of the broader regional developments actually serves to highlight its distinctive history and traditions. For example, in comparison with Meiji Japan, Choi emphasizes Korea's relatively greater debt to Anglo-American cultural and legal influences. He also notes the dominant influence of the German legal tradition that was sealed by the Japanese colonization. Korea's experience of legal modernization is intimately bound up with Japan's experience, and yet Korea's distinctive position as colonized, without its own independent access to continental sources, led to a different reception of Western law than occurred in Japan. It is also refreshing to see Choi's comparative treatment of North Korea and South Korea in the last part of the book. The only quibble with the regional focus is that it would have been of further interest had Choi included Taiwan in the comparison, since it alone among Northeast Asian jurisdictions shares Korea's colonial experience. As a historian, Choi's focus is on intellectual and cultural influences rather than mere adoption of positive legislation. He emphasizes the distinction between formal legal institutions and the living legal culture, suggesting that traditional attitudes and ideas about law may well lag behind legislative developments. This broad approach also helps to emphasize Korea's distinct adaptation of Western legal institutions. Even if formal rules are the same across jurisdictions, the use of law is inevitably shaped by the local cultural environment. Like some volumes of collected papers, the text is at times repetitive, and though the essays flow sequentially quite well, some of them probably could have been left out or left to an appendix. Foremost in this regard is the bibliography of Korean...

The Common Law Character of English Charters: Spontaneous Order in the Constitutions of Clarendon (1164)

The Constitutions of Clarendon are presented as an illustration of the common-law character of English charters. Although formally renounced and abrogated shortly after ratification, the Constitutions remain a fundamental basis for the separation of church and state. Analysis of the historical literature reveals that spontaneous order subsumes many kinds of positive law and designed order. The emergence of spontaneous order in common law is described, defined, and contrasted with positive legislation. Spontaneous order allowed secular society to grow and flourish. It is acknowledged that charters played a secondary role in making positive law, and were precursors to modern positive legislation. The implications of positive versus spontaneously evolved law for economic efficiency are discussed. The historical context and aftermath of the Constitutions is presented, and their content is discussed and analyzed from an economic perspective. The key legal problem the Constitutions addressed was the relationship between competing secular and canon-law jurisdictions, which suffered from inherent conflicts-of-interest. This provided economic decision makers perverse incentives. Prior to the Constitutions, the Church was able to act as plaintiff and judge in civil disputes and intimidate litigants by exercising criminal jurisdiction. Finally, the Constitutions are discussed and presented as an example of spontaneously evolved law, which promoted greater entrepreneurial freedom and economic efficiency.

Personal Accounts: From the Depths of Despair to a Mission of Advocacy

Personal Accounts: From the Depths of Despair to a Mission of Advocacy

Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History

Medieval institutions contain an important strain of spontaneous order, especially from the pre-Christian period. A series of irregular successions after the Norman conquest made royal charters increasingly important in establishing the sovereign's legitimacy. Henry I's coronation charter (1100) formed the basis of Henry II's aggressive program of reform legislation, as well as for Magna Carta (1215). Henry II aimed at restoring the legal and political institutions of his grandfather Henry I after a period of civil strife and social degeneration. The fact that almost all later charters grew out of Henry I's charter, combined with the fact that later charters expanded and refined legal and political institutions, establishes the evolution of spontaneous order in the English charters. This evolution continued throughout the middle ages as subsequent kings confirmed Magna Carta.

Reviving natural law

Despite numerous attempts to invalidate the concept of natural law as presupposing the belief in God or in universal rules of human Reason, this concept is no less valid now than it was in the thirteenth or seventeenth centuries. All that is required to uphold the belief in natural law is a kind of metaphysical faith in the notion of human dignity, which provides us with the surest barriers against both unjust positive legislation and totalitarian political systems.

Between local tax and global statistic: The Census as local record

The enumeration of caste and religion by the all-India Census was emblematic of a particular kind of imperial rule. Might a different procedure of compilation and record on an alternative epistemological basis have developed? Censuses had provided governments in India with statistical information at least from the 1820s, and been used for local taxa tion from much earlier. The possibility of a continually updated civil registry had been mooted from time to time but not put into effect. Another alternative, in which a census register formed part of the village record similar to the land registers, existed for a brief period in the 1850s in the Panjab. But this 'rule by record' was itself based on a theory of positive legislation and the preservation of social difference, pannomian if not panoptic. A different kind of census could only have belonged to another kind of imperial rule.

Rights Application Doctrine and the Clash of Constitutionalisms in Canada

AbstractCanadian courts have been torn between two constitutionalisms in their interpretation of the application provisions of the Canadian Charter of Rights and Freedoms. The traditional, liberal constitutionalist approach establishes a distinction between public and private realms and between state action and inaction, limiting the Charter's application to the public, governmental sphere of positive legislation and executive conduct. However, the courts have oscillated between this and a postliberal constitutionalism according to which distinctions between public and private and state action and inaction are arbitrary and artificial. This article argues that this clash of constitutionalisms is responsible in large part for the courts' inconsistent and confusing record in interpreting sections 32 and 52 of the Constitution Act, 1982.

Indian Joint Ventures in SAARC Countries : Problems And Prospects

The Paper deals essentially with the potential of promoting industrial cooperation in the SAARC countries by establishing joint ventures. Such an initiative is based on economic logic which, at the unit level, signifies higher returns on investment in the host country. Of the six SAARC nations, Indian corporates have invested only in two countries namely Nepal and Sri Lanka. Though the size and scale of operation in these countries is small, most Indian corporates hold a majority stake in their ventures. Indian companies consider investing in SAARC an attractive business proposition mainly for factors such as captive domestic market, exports to third countries, geographical proximity, positive legislation, developing raw material supplies and higher profits. Nevertheless, constraints in the form of small market size, inadequate infrastructure, paucity of information and cumbersome government procedures hinder realising of the full potential of the venture.

Shari‘a and Positive Legislation: is an Islamic State Possible or Viable?

Shari‘a and Positive Legislation: is an Islamic State Possible or Viable?

Biotech needs positive legislation and regulation

Biotech needs positive legislation and regulation

Environmental Issues and Policies in Costa Rica

Despite its widely publicized efforts in environmental conservation, Costa Rica continues to experience severe deforestation due to entrenched deforestation interests in the country. These interests are created by existing legislation which unintentionally favors deforestation, and by the longstanding nonapplication of positive legislation. Costa Rica's newest strategy involves the mobilization of a broad‐bayed conservation constituency through environmental education and the development of a “conservation area” strategy which helps distribute responsibilities and benefits of conservation among populations adjacent to protected areas.

The Strike in a Laissez‐Faire Society

OVER THE PAST SEVERAL DECADES, organized labor in the United States has more and more come to reject the voluntaristic approach epitomized (although not consistently) by Samuel Gompers, chiefly because of the conviction that the cards are stacked against the union in an economic melieu not ordered by the State. Despite the demand for free collective bargaining, little faith in its efficacy has been displayed. Instead, labor has increasingly mobilized politically to bring about positive legislation regarded as favorable to its interests. Apologists for this phenomenon cite numerous historical examples to justify their argument that labor was hopelessly outmatched so long as it confined itself to purely economic techniques to gain its ends. The failure of most important American strikes in the years prior to the passage of the Wagner Act would seem, superficially, to validate this contention. Yet what is often overlooked is the fact that these strikes did not occur in a

Legislation and Economics in Canada

MR. BENNErr, the Prime Minister of Canada, can have taken little comfort from the fact that, with the close of the last session of Parliament on July 3rd, the only visible rewards for his efforts were two Liberal landslides in the provincial elections in Saskatchewan and Ontario on June i9th, the reverberations of which had scarcely died away. The session had provided more positive and advanced legislation than any of its predecessors, yet there remains little room for doubt that these two elections, despite their provincial scope, indicated a definite antipathy to the Federal as well as the provincial Conservatives. In the face of this paradox, the political signs in Canada are hard to read. The Government has refreshingly abandoned the idea that prosperity will return like manna from heaven and there are now on the Canadian statute books a series of enactments which definitely commit the State to a degree of control of the economic life of the country. The more important of these have been the provision for a central bank, the Natural Products Marketing Act, farm debt adjustment legislation, a program of public works and, finally, the appointment of the Parliamentary Committee on Price Spreads and Mass Buying. The Bank of Canada ostensibly will be the outcome of the report of the MacMillan Committee on Banking and Currency. In so far as a central bank had been advocated by the Liberals and the Co-operative Commonwealth Federation (or C.C.F.) and public opinion was veering in favor of such a move, the appointment of this commission was largely a method of permitting the Conservatives to introduce the measure without losing face. As a consequence, the report was devoted essentially to the desirability of a central bank rather than to the more important question of its form, recommendations for which were only included in an un-

Labor

All labor activities were influenced by the depression. Strikes increased and were mostly participated in by the poorly organized and unorganized. Most of the strikes were lost. The weakened condition of the old unions has brought rival unions into prominence. The order of the day is wage reductions. Even the relatively strong railroad unions accepted a wage reduction. The weakened unions are unsuccessful in maintaining national agreements and in securing conferences with employers. Some unions have taken drastic wage reductions as a means of ultimately strengthening their position. Will this new strategy bring the desired results? As the year progessed, organized labor developed a keener interest in positive legislation and political action. The talk of a "third" party is more persistent. A growing interest in independent political action is evident from the results of the elections. The hunger marches also indicate serious unrest. A "third" party venture seems to be in the offing.