Comparative Law Research Papers - Academia.edu (original) (raw)

The world is entering a new phase in its international relations. In Eastern Europe new political entities have emerged. The article deals with the case of Slovakia in the period 1939 – 1945, an example of a de facto State that emerged... more

The world is entering a new phase in its international relations. In Eastern Europe new political entities
have emerged. The article deals with the case of Slovakia in the period 1939 – 1945, an example of a de
facto State that emerged during a time of instability in Europe. Slovakia 1939–1945 held many
characteristics of a de iure State such as a wide international recognition. From a formal point of view it
could thus be described as a de iure State, however, the article shows that it is not possible to characterise
it in this way and slightly amends the criteria for accepting de facto States. The case of Slovakia 1939 –
1945 shows how vulnerable small States can become and how quickly recognition can be granted as well
as withdrawn.

This chapter for the Oxford Handbook of Criminal Process offers a critical, comparative account of pretrial evidence disclosure laws in common law jurisdictions. Disclosure law was once minimal throughout the common law world; the... more

This chapter for the Oxford Handbook of Criminal Process offers a critical, comparative account of pretrial evidence disclosure laws in common law jurisdictions. Disclosure law was once minimal throughout the common law world; the longstanding norm was that one party need not aid the other's preparation by sharing evidence prior to trial. Substantial pretrial disclosure duties are comparatively recent, and reflect several developments. One is the fact that trials are now exceptional as the process by which to resolve prosecutions; guilty pleas are the norm. Evidence can face adversarial scrutiny, and facilitate negotiated resolutions, only if parties have pretrial access to it. Another is changes in the nature of evidence; expert analysis, for example, often cannot be confronted effectively without advance preparation. Moreover, pretrial disclosure has gradually become understood to make both trials and negotiated resolutions more efficient, and—despite some dissent—to improve the truth-finding capacity and fairness of criminal process.
Common law jurisdictions show considerable similarity on disclosure rules. In the last half-century, there emerged a strong consensus that the government must disclose relevant evidence in its possession that does not support the prosecution's case and thus that it would not present at trial. Rules also typically impose greater duties on the defense to disclose significant portions of its evidence before trial. The critical exception to this international consensus relates to inculpatory evidence. Rules in England, Canada, and elsewhere outside the United States generally require the prosecution to disclose evidence it will rely on to prove guilt. Many U.S. jurisdictions, however, have resisted this trend, mandate very little prosecution disclosure, and even limit judicial authority to compel such disclosure.
As a framework for critical assessment, the chapter examines structural choices that adversarial justice systems must make in disclosure schemes and their rationales doing so. Those choices include how much to empower judges rather than parties to control disclosure, and how to enforce parties' obligations to disclose when their partisan interest counsels otherwise. Those decisions reflect assessments about how to balance competing epistemic and non-epistemic goals including the goal of accurate truth-determination and divergent interests of the parties, constitutional principles, and the security or privacy victims and witnesses.

The debate on the right of choice in cases of euthanasia and cryonics continues unabated. The Court's in USA, UK and India have discussed on these issues but, have not come up with concrete findings on the same. Both these issues involve... more

The debate on the right of choice in cases of euthanasia and cryonics continues unabated. The Court's in USA, UK and India have discussed on these issues but, have not come up with concrete findings on the same. Both these issues involve questions of the choice of life & death. In the case of RE JS Disposal, the judge of the UK High Court (Family Division) has perhaps shown a way out by respecting the choice of a 14 years girl and allowing her body to be cryonically preserved. With regard to euthanasia the options given by the courts are often conflicting. While the choice of active euthanasia has not been accepted but, passive euthanasia has been permitted in Indian Supreme Court in the case of Aruna Shanbaug. As science and technology progresses questions related to euthanasia and cryonics will be raised again and again. There is need for concretization of the policy relating to respecting to choices made by people as to how their bodies ought to be treated during the life and after the death.. In this paper, paradox of truth of death as well as faith in life in the interplay of cryonics and euthanasia in the choices people make and the policies and law State adopts, has been examined, in the light of contemporary developments.

Studio delle successioni in diritto comparato

THIS IS NOT MY (FAJRI's) WORK, BUT OF DR MAJDAH ZAWAWI, I AM UPLOADING THIS ON HER BEHALF Legal analogy is the most common method of legal reasoning in most legal systems. However, there are differences in the application of legal... more

THIS IS NOT MY (FAJRI's) WORK, BUT OF DR MAJDAH ZAWAWI, I AM UPLOADING THIS ON HER BEHALF Legal analogy is the most common method of legal reasoning in most legal systems. However, there are differences in the application of legal analogy in the civil legal system if compared to its application in the Islamic legal system. The main aim of this article is to look into the discrepancies in applying legal analogy between these two legal systems, primarily by looking into the utilization of the method of masalik al-'illah under Islamic law as compared to the theory of ratio decidendi, and distinguishing under the civil law.

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and... more

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.

Pongo a disposición de los lectores, esta obra, ya descatalogada desde hace años, que aún puede ser útil para los estudiosos de la jurisrprudencia constitucional y la doctrina española y alemana sobre el principio de capacidad económica.

«La Costituzione italiana. Commento articolo per articolo» (Il Mulino, 2018) da oggi è in libreria. Si tratta di un lavoro curato insieme con i colleghi Lorenzo Cuocolo , Francesca Rosa e Giulio Enea Vigevani , e che ha chiamato a... more

«La Costituzione italiana. Commento articolo per articolo» (Il Mulino, 2018) da oggi è in libreria.
Si tratta di un lavoro curato insieme con i colleghi Lorenzo Cuocolo , Francesca Rosa e Giulio Enea Vigevani , e che ha chiamato a raccolta oltre cento costituzionalisti per fornire uno strumento di lettura della Costituzione che fosse scientificamente rigoroso e lessicalmente accessibile per gli studenti ma anche per commentatori, analisti e giornalisti, della carta o della rete, che spesso devono fornire all’opinione pubblica analisi fondate sulle norme costituzionali.
Per questo, nel settantesimo della Costituzione, abbiamo voluto far emergere, tramite commenti puntualI, brevi e chiari, la «Costituzione vivente», ossia le trasformazioni profonde della Costituzione italiana, tenuto conto a maggior ragione del valore imprescindibile dell’Europa unita e della tutela sovranazionale dei diritti fondamentali, che in questi anni si sono consolidati.
Vi aspetta in libreria (oppure sul sito Mulino o...Amazon).

Área do Direito: Civil; Processual Resumo: O ensaio aborda particularidades do Procedimento Extrajudicial Pré-executivo de Portugal (PEPEX), apresentando reflexões e provocações sobre sua possível implantação no Brasil. Palavras-chave:... more

Área do Direito: Civil; Processual Resumo: O ensaio aborda particularidades do Procedimento Extrajudicial Pré-executivo de Portugal (PEPEX), apresentando reflexões e provocações sobre sua possível implantação no Brasil. Palavras-chave: Procedimento Extrajudicial Pré-executivo – Portugal – PEPEX – Agente de execução – Brasil Abstract: The essay discusses particularities of the extrajudicial pre-executive procedure (EPEP) from Portugal, presenting reflections and provocations about its possible implantation in Brazil.

Il processo innovativo che ha coinvolto negli ultimi decenni il sistema finanziario ha assistito all’affermazione nei mercati degli Exchange Traded Products (ETP), la macrofamiglia di strumenti finanziari ad indice quotati e negoziati in... more

Il processo innovativo che ha coinvolto negli ultimi decenni il sistema finanziario ha assistito all’affermazione nei mercati degli Exchange Traded Products (ETP), la macrofamiglia di strumenti finanziari ad indice quotati e negoziati in un mercato regolamentato. Il presente lavoro si concentra nella disamina degli Exchange Traded Commodities (ETC), strumenti finanziari emessi da una società costituita ad hoc per effettuare esclusivamente una o più operazioni di emissione di strumenti finanziari a fronte dell’investimento diretto dell’emittente in materie prime o in contratti derivati su materie prime. Dopo un inquadramento della fattispecie, la disamina si sposta sulla riconducibilità di tali strumenti agli strumenti finanziari derivati e sulle principali problematiche di natura civilistica relative all’istituto, soprattutto alla luce della più recente evoluzione del panorama normativo comunitario.

The book strives to provide a historical, comparative, and multidisciplinary introduction to the study of private law. Against the backdrop of the predominant position enjoyed by legal positivism, private law is thus understood as a... more

The book strives to provide a historical, comparative, and multidisciplinary introduction to the study of private law. Against the backdrop of the predominant position enjoyed by legal positivism, private law is thus understood as a complex social phenomenon, which intercats with human culture as a whole. The national jurisdictions belonging to the Western legal tradition are mainly depicted, as well as the supranational trends that point towards a global law. Particularly, the rise of a European law is accounted for not only within the framework of the Union's legislature, but also through the development of a rediscovered ius commune that emerges from comparative studies conducted by scholars and from the creative attitude of the courts. A special attention is paid to the sources of uniform law and to the development of soft law as a means of integration of legal systems. Traditional doctrines of juridical facts and duties are finally reinterpreted as devices designed to construct a jurisprudence that extends beyond national borders.

El presente trabajo analiza la obra de Raúl Brañes, a la luz del derecho comparado. El objetivo del mismo es descubrir y describir las metodologías que fueron utilizadas por el autor en su obra, prolífica, de derecho ambiental... more

El presente trabajo analiza la obra de Raúl Brañes, a la luz del derecho comparado. El objetivo del mismo es descubrir y describir las metodologías que fueron utilizadas por el autor en su obra, prolífica, de derecho ambiental latinoamericano. Para realizar tal análisis y su evolución, sus trabajos serán observados en relación con su tiempo y con las particularidades biográficas del autor, las cuales pueden resultar explicativas de parte de las opciones de estudio que va tomando. Veremos que el trabajo emprendido se topa en diversas ocasiones con una realidad muy probable: no hay una metodología preconcebida por el autor ni tampoco consistente en el tiempo. Esta dificultad, sin embargo, hace aún más interesante la valoración de sus obras, que fluyen conjuntamente con la propia creación y evolución de la rama del derecho ambiental en América Latina, donde Brañes es reconocido como uno de sus padres fundadores. 1. Su exilio y su época como consultor internacional. Raúl Brañes fue, en la Universidad de Chile, estudiante y luego profesor de Derecho Procesal 1 , hasta que en 1973 dejó el país para radicarse en México, exiliado por la dictadura 2. A esto alude implícitamente , en la dedicatoria que dejara escrita para su último trabajo, que se reproduce íntegra por ser inspiradora precisamente para quienes Brañes quizo incentivar:

Civil procedure and delay were born together. This is, of course, due to the fact that no lawsuit can be decided fairly without at least some minimum period of time in between first presenting the case to a court and obtaining a final... more

Civil procedure and delay were born together. This is, of course, due to the fact that no lawsuit can be decided fairly without at least some minimum period of time in between first presenting the case to a court and obtaining a final judgement. Manifestly this type of delay is not problematic. Delay becomes a problem, however, if it can be classified as ‘undue delay’, i.e., when it is felt that too much time has elapsed between the filing of an action and its ultimate decision by the court. Although it is difficult to establish what amount of time can be classified as ‘too much time’, and also because opinions as regards this issue may differ from country to country and from period to period, it is no secret that undue delay has been part of modern procedure from almost its conception. The present volume studies delay in civil procedure, both from a modern and from an historical perspective.

Against the backdrop of the predominant legal positivism, this book strives to depict private law as a complex social phenomenon interacting with human culture as a whole and its history. The author sketches the national jurisdictions... more

Against the backdrop of the predominant legal positivism, this book strives to depict private law as a complex social phenomenon interacting with human culture as a whole and its history. The author sketches the national jurisdictions belonging to the Western legal tradition, as well as the supranational trends that point towards a global law. In particular, the rise of a European law is accounted for not only within the framework of the Union, but also through the development of a rediscovered ius commune that has emerged from comparative studies conducted by scholars and from the dialogue among national and international courts. Traditional doctrines regarding juridical facts and rights are presented as analytical tools aimed to construct a jurisprudence that extends beyond national borders.

A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law... more

A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation.

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital... more

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital mutilation’ or FGM), and one for boys (in which such alterations should be termed ‘male circumcision’). In this article, I call into question the moral and empirical basis for such a distinction, and argue that all children—whether female, male, or intersex—should be free from having parts of their genitals removed unless there is a pressing medical indication.

Introduction to Turkish Law reflects major changes in Turkish law that had happened after the publication of the sixth edition. This edition covers the most significant of these changes, including the constitutional amendment of 2017... more

Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for... more

Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for exploring the foreign legal traditions -- particularly the civil law tradition of continental Europe and the socialist law tradition of the Soviet Union -- that have influenced the modern Chinese system of law. This Article examines six elements of the structure of the formal criminal justice system, placing special emphasis on those aspects of that system that are derived from, or analogous to, features of European or Soviet civil law. The six elements are: (1) the Organic Law of the People's Courts; (2) the Organic Law of the People's Procuracy; (3) the Code of the Criminal Law; (4) the Code of Criminal Procedure; (5) the Constitution of 1982; and (6) the opinions of the Supreme People's Court. [The article also includes English translations of these six elements.]The article argues that the major legacy bequeathed to the Chinese by the European and Soviet legal traditions is a judiciary which is neither expected, nor able, to exert significant checks or restraints on the arbitrary exercise of state power by the executive and legislative branches of government. The article also asserts that the structure of the formal criminal justice system contains many distinctively Chinese features the thrust of which is to inject flexibility into the criminal justice system so as to allow for the exercise of administrative discretion founded in and guided by political ideology.

In the British Academy of Songwriters, Composers and Authors (BASCA) and others v Secretary of State for Business, Innovation and Skills case, the High Court of Justice in matter of private copy exception provides the twofold prime... more

In the British Academy of Songwriters, Composers and Authors (BASCA) and others v Secretary of State for Business, Innovation and Skills case, the High Court of Justice in matter of private copy exception provides the twofold prime opportunity to shed light on the state of the art of copyright in the UK and to flesh out the idea of 'legal hysteresis’. I support the reintroduction of the private copy exception, possibly in a less narrow fashion, and I explain the reasons why I am confident that my expectations will be fulfilled.