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This article considers the impact of the book People's Law and State Law: the Bellagio Papers, edited by Anthony Allott and Gordon Woodman, published in 1985. It sets out why I consider this publication to be a seminal text in establishing and developing the field of legal pluralism, which had a great impact on both the development of the Journal of Legal Pluralism and on my own development as a young legal scholar. In looking beyond the text, I consider the ways in which scholars have engaged with the book's call for legal and social science to "work from a new map". In doing so I explore a recent arena of scholarship involving international intervention. The article highlights the important contribution that empirical studies can make to research on legal pluralism, by moving beyond the binaries of state and non-state actors, as well as through pursuing how scholars are adopting a more integrated and relational approach to law, one that may involve breaking down traditional disciplinary boundaries. In particular, I explore how concepts such as space and time contribute to a multi-dimensional, scalar perception of law at odds with a formalist, state-centred view of legal pluralism. This allows new insights to be generated into the operation of plural legal structures and constellations in which people operate allowing for a view of law that involves multiple networks of relations cutting across international, national and local boundaries. [ABSTRACT FROM AUTHOR]

The compatibility in terms of domestic systems that embed specific values of particular legal traditions is a critical determinant of international cooperation. We analyze international cooperation on professional qualifications because a domestic qualification system best showcases its distinct approach to social governance. Civil law states, which value written rules and certainty, use paper examinations as a core component of competency assessment of professionals, and upon international cooperation they opt to harmonize paper examinations. Common law states regard track record as important in assessing competence, and they often mutually allow professionals from partner states who have a good track record to practice in their territory. Cooperation between civil and common law states is possible when both parties make a conscious effort to align their domestic systems. In this case, an international mechanism has features of harmonization and mutual recognition. We also consider how to generalize the findings to explain states' attitude toward inter-governmental organizations in general. [ABSTRACT FROM AUTHOR]

This paper examines the typographic form of Plowden's Commentaries within its legal, printing, and technological histories, demonstrating that its typographic appearance embeds complex tensions over the study and dissemination of the common law into its material form. There are legally relevant meanings in the shape of letters, beyond mere legibility, that are connected with the heritage of type design and print technologies. Within the context of debates over the propriety of early common law printing, this paper provides an examination of Plowden's typographic style as roman and humanist. Tracing the genealogy of roman and humanist letters that led to the ones used in Plowden's opening judgment, the typography of the Commentaries is connected to debates over the resistance of the common law (as an unwritten law) to humanism and Roman-style codification. Plowden's typographic register is thereby seen to encode the Latinate traditions to which the structure and custom of the English common law is opposed. [ABSTRACT FROM AUTHOR]

This paper analyses the application of force majeure, the principle of change of circumstances, and the doctrine of frustration in the context of the COVID-19 pandemic in New Zealand and China. The paper will first outline the general legal test and legal consequences of the three doctrines. Secondly, the paper will discuss the legal tests and legal consequences of the three doctrines specifically in New Zealand and China and in the context of COVID-19. Thirdly, the paper will discuss the similarities and differences between the three doctrines. In the second part of this paper, the paper will discuss how the three doctrines apply to commercial lease cases in the context of COVID-19. The paper will select two commercial lease cases in New Zealand and China to analyse the robustness of all three legal doctrines in providing practical workable solutions for tenants and landlords during government-imposed lockdowns and enforced closures of leased premises. The paper illustrates how the differences in the legal tests, legal consequences and underlying rationales of the doctrines result in different outcomes of a case. The paper concludes that the doctrines each have their strengths and weaknesses and other civil and common law countries can learn from the experiences of China and New Zealand. Furthermore, the paper suggests that courts should carefully consider the relevant facts and circumstances of a case when applying legal doctrines. Moreover, courts need to strike the right balance between doing the victims of unforeseen circumstances and upholding the principle of the sanctity of contract. The analysis of the three doctrines is particularly useful in this day and age where there is a high likelihood of the occurrence of another pandemic-level event and causing unprecedented disruptions to the commercial world. Moreover, the research has provided tenants and landlords with a good starting point as to how to protect themselves in the event of an unforeseen event. [ABSTRACT FROM AUTHOR]

Habermas' theory of popular sovereignty has received comparatively little sustained critical attention in the Anglo-American literature since initial responses to Between Facts and Norms. In light of subsequent work on group agency, this paper argues that Habermas' reconstruction of popular sovereignty—in its denial of the normative force of collective citizen action—is best understood as a renunciation of the doctrine. The paper is structured in three sections. Section 1 examines Habermas' treatment of popular sovereignty prior to Between Facts and Norms as both (i) a principle of constitutional legitimacy or normative justification for the modern Rechtsstaat and (ii) a concept of legitimation for the rule of the ascendant liberal bourgeoisie. Section 2 then argues that Habermas' reconstruction of popular sovereignty in Between Facts and Norms, by discounting the role of collective citizen agency in the justification of the modern constitutional state, empties the doctrine of its core normative content. The final section briefly elaborates on this claim by reference to Habermas' theory of the public sphere. [ABSTRACT FROM AUTHOR]

In South Africa, freedom of testation has been an enjoyed practice since ancient times. It gave testators comfort in knowing that when they departed, their legacies and property would be looked after by those they had chosen to survive their estates. Before the advent of the Constitution, testators used to abuse this freedom. There existed a tendency to exercise this freedom without limitations. However, the Constitutional epoch brought about changes in the manner the testators exercised their freedom of testation. Amongst other things, was the limitation to freedom of testation. Legislation and Common Law also contributed to restricting or limiting this freedom. Against this backdrop, this article investigates the impact of the Constitution on freedom of testation in South Africa under the current constitutional dispensation. The paper is predicated on the assumption that freedom of testation gave testators leeway to promote discrimination and unfairness. Therefore, this paper will show that freedom of testation has evolved and is no longer absolute in South Africa, with the Courts playing an important role in the process. [ABSTRACT FROM AUTHOR]

This paper aims to determine the legal position of laws that use the omnibus method in the system of laws and regulations in Indonesia. The focus of the research focused on the legal position of laws using the omnibus method in terms of the provisions of Article 97A of the Law on the Establishment of Laws and Regulations. Using the normative juridical method through literature study, this paper concludes that with the characteristics of laws that use the omnibus method based on the regulations in Article 97A of the Law on the Establishment of Laws and Regulations, these provisions result in inconsistencies in norms with the provisions of the hierarchy of laws and regulations regulated by Article 7 paragraph (1) and paragraph (2), provision number 223 Annex II Law on the Establishment of Laws and Regulations, as well as deviating the principle of legal preverence, namely the principle of lex posterior derogate legi priori. The vagueness and inconsistency in the formulation of Article 97A norms results in legal uncertainty, thus contradicting the guarantee of legal certainty as mandated by Article 28D paragraph (1) of the NRI Constitution of 1945. [ABSTRACT FROM AUTHOR]

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project. [ABSTRACT FROM AUTHOR]

In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law. [ABSTRACT FROM AUTHOR]

Copyright of Revista Vasca de Derecho Procesal y Arbitraje is the property of Instituto Vasco de Derecho Procesal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In this paper it is shown that interpretive canons are either constitutionally invalid because of the principles of interpretation it establishes, or a theory of interpretation can be made to be inconsistent: where a theory of interpretation says do p , then a new canon can say do not- p. This is called the Canon Dilemma. Whichever horn of the dilemma is taken as acceptable (accept invalidity or possible inconsistency), this shows that canons cause more problems for theorising about interpretation than currently realised. Some might interpret the Canon Dilemma as a process of theory change (p is replaced with not- p rather than being contradicted by it), but even then problems of incoherence still persist. This paper also shows a connection between debates on the constitutionality of interpretive canons and the descriptive accuracy of linguistic theories of interpretation. [ABSTRACT FROM AUTHOR]

Purpose: The purpose of this paper is to determine whether there is any fundamental difference in the meaning of contract in these two legal systems by analysing some of the essential principles of contract particularly parties' agreement and consideration. Design/methodology/approach: This paper seeks to investigate the degree of equivalency of the term contract and its Islamic law counterpart "Aqd". To implement this task, it applies some comparative law techniques to examine certain contractual elements under common law and Islamic law. Findings: The argument that "contract" and "Aqd" are not equivalent is superficial, and it is not well-supported by concrete evidence. The examples used to build this argument are merely limited exceptions to the general principles of contract, and some of them even exist under both legal systems in a similar manner such as "deed" and "Hibah". Practical implications: The paper is of interest to legal practitioners and professionals working in cross-cultural or international contexts, as understanding points of conformity and disconformity between "contract" and "Aqd" can help in multiple ways. These may include negotiating international transactions, contract drafting and dispute-resolution processes involving parties from Western and Islamic law-based jurisdictions. It may also aid policymaking and lawmaking processes aiming to harmonize contract principles across different jurisdictions. Social implications: The research paper is important for public attitude, as understanding similarities and differences between "contract" and "Aqd" fosters mutual respect, tolerance and cooperation between individuals and communities adhering to different legal systems. Originality/value: There is a common belief that the term "contract" substantially differs from "Aqd", and it is by no means safe to presume that every "Aqd" qualifies as a contract. The current research introduces a new point view on the degree of conceptual equivalency of the two terms by showing resemblances in aspects relating to some contractual elements which have always been viewed as an area of divergence rather than convergence. [ABSTRACT FROM AUTHOR]

Purpose: The lack of legal framework on corporate criminal liability (CCL) in Mauritius is a matter of concern with the growing number of corporate crimes. The purpose of the paper is therefore to provide a critical overview of the existing framework on CCL in Mauritius with the aim of underlining its deficiencies and lacunas. As a consequence, an attempt is made to compare the Mauritian model with the French one, so that salient features and characteristics of the French model of CCL can be borrowed into the Mauritian legal framework. Design/methodology/approach: This paper adopts the black-letter approach and the comparative research methodology. The legislative framework of Mauritius on CCL will be compared to the related laws of France with the goal of drawing lessons and inspirations for Mauritius, given that the French model of CCL is well established and highly effective. Findings: The mandatory application of the identification principle in CCL, inspired from the British common law, is a serious impediment towards successful criminal prosecution of companies responsible for criminal offences. In addition, the lack of clear legal provisions on substantive and procedural aspects of CCL is a matter of concern and demonstrates the dire need for legal amendments and action from the legislator as the paper discusses. Originality/value: To the best of the author's knowledge, this paper will be among the very first one tackling this area of law from a comparative perspective. The issue of CCL has indeed receive very little academic attention and this paper will help in filling the literature gap on this matter. It will also help future research on the matter for students, academics and corporate law practitioners. [ABSTRACT FROM AUTHOR]

Copyright of Jurnal Jurisprudence is the property of Jurnal Jurisprudence and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article examines the principles of implied jurisdiction agreements and their validity on a global scale. While the existing scholarly literature primarily focuses on express jurisdiction agreements, this study addresses the evident lack of scholarly research works on implied jurisdiction agreements. As such, it contributes to an understanding of implied jurisdiction agreements, providing valuable insights into their practical implications for international commercial contracts. The paper's central question is whether implied jurisdiction agreements are globally valid and should be enforced. To answer this question, the article explores primary and secondary sources from various jurisdictions around the world, including common law, civil law, and mixed legal systems, together with insights from experts in commercial conflict of laws. The paper argues for a cautious approach to the validity of implied jurisdiction agreements, highlighting their potential complexities and uncertainties. It contends that such agreements may lead to needless jurisdictional controversies and distract from the emerging global consensus on international jurisdiction grounds. Given these considerations, the paper concludes that promoting clear and explicit jurisdiction agreements, as supported by the extant international legal frameworks, such as the Hague Conventions of 2005 and 2019, the EU Brussels Ia Regulation, and the Lugano Convention, would provide a more predictable basis for resolving cross-border disputes. [ABSTRACT FROM AUTHOR]

This paper seeks to address the issue of how evidence obtained in violation of a Charter-protected right is to be dealt with in civil forfeiture proceedings. In arriving at the answer, the governing jurisprudence in this area of the law will be canvased to provide a contextual background that informs the parameters of this discussion. However, it will ultimately become clear by the end of this paper that evidence obtained in violation of a Charter-protected right should be dealt with by way of section 24(2) of the Constitution Act, 1982, and the use of a modified Grant test. Civil forfeiture is the process by which the state commences legal action to obtain property that was seized as an instrument or proceed of unlawful activity. Although property can be forfeited through a number of different mechanisms, the scope of this paper is limited to forfeiture proceedings commenced by way of civil action under provincial legislation with a focus on British Columbia. The case law presented in this paper will focus primarily on appellate court decisions from across the country due to the scarce attention this area of the law has received. These cases will highlight the endeavours of litigants who sought to undermine civil forfeiture proceedings through the use of common law principles and the Charter. Finally, commentary will be provided on the direction future research in this area of the law should take. [ABSTRACT FROM AUTHOR]

The notion of contract formation, under the Indian Contract Act (ICA), has seen certain contentious claim rise vis-à-vis its construction. However, time and again, Indian Courts have shown their resilience to stick to the interpretation that has been passed onto us by the esteemed judges of the past. Nonetheless, can contract formation really be treated as a finished issue? Is the present understanding, one that has been extrapolated from the English Law on contracts, perhaps the most effective one? This paper has attempted to answer these questions. By looking at the historical development of the moment of contract formation under the ICA, it juxtaposes its hypothetical construction under a different theory of Law. This paper also examines the practicality of the aforementioned hypothetical construction by comparing it to the different models of contract law presently operating in both common law and civil law countries and suggesting possible reconstructions of the model of contract formation under the Indian Contract Act. [ABSTRACT FROM AUTHOR]