On the Law in General

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elephant.hyperthese.net/19-azithromycin-et-zithromax.php The general law is the law that exists apart from legislation. The general law consists of the common law and the principles of equity, which are applicable in Queensland because of its history as a colony of the United Kingdom. The general law emerged from the history of the United Kingdom and did not rely on laws made by Parliament for its existence. The general law is commonly referred to as judge made law because it is found in decisions of judges on particular cases brought before them. Nevertheless, Judge Stephen probed deeper and brought to light the deep controversies in English law regarding this conclusion.

He also states his own opinion: that the English approach is wrong. His approach owes much more to comparative law: what can we learn about our legal system by examining others? What conclusions can we draw from those lessons? A similar approach is taken in the amicus curiae brief submitted to the Extraordinary Chambers in the Courts of Cambodia by the Centre for Human Rights and Legal Pluralism: the authors of the brief do not simply report on the extent to which the rule regarding individual guilt is present in a range of legal systems, but they also examine the impact that this rule has had, the problems and controversies it has given rise to, and the aptness of this rule for the international context.

The Nature of Law

At another point in the Tribunal's consideration of this case, the question of the acceptance by the Tribunal of a guilty plea was raised. They concluded that reference could and should be had to common law adversarial systems from which the rule in the Statute was derived. He noted the strong tendency to refer to adversarial systems in seeking to interpret and apply the Statute, and argued that the result would be a skewing of the tribunal's approach towards such systems, something which the structure of the Statute sought to avoid.

There is a good deal of merit in Cassese's approach. Concerns about the overweening influence of one system at the expense of others are real, and the impacts of these subtle forms of domination on the legal system and on the actors — in the case of international criminal law, the individuals — whose actions are judged within it can be serious.

At the same time, one wonders if the dangers in this case were not overblown. The judges who turned to common law for insight into guilty pleas sought carefully to justify this move, and noted that they did not feel bound by the rules applicable in the jurisdictions considered. And while it is true that Cassese was able to locate guiding principles within the Statute and Rules of Procedure, he also deprived himself of the insights generated by decades, even centuries, of collected experience at the municipal level.

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Legal systems being social institutions, not machines, the processes of trial, error, adjustment, and amendment and the gradual accretion of norms and criteria all constitute a precious resource that international judges refuse to exploit at their peril. At the end of the day, the judges all reached the same conclusion, but some judges could rest their conclusion on insights derived from examinations of countless guilty pleas in a range of jurisdictions, while others were compelled to rely exclusively on an international instrument drafted a few years earlier.

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Law is a system of rules that are created and enforced through social or governmental .. In general, legal systems can be split between civil law and common law systems. The term "civil law" referring to a legal system should not be confused. John Gardner. How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? DOI/acprof:oso/

The prevailing international law methodology for identifying principles in municipal law and transforming them into general principles of law is highly unsatisfactory. The first aspect of the international methodology, the quest for commonality or representativeness, must be justified on the basis of one of three assumptions, none of which is particularly convincing.

The first possible assumption is one rooted in natural law thinking, namely that the presence of a rule in many legal systems is evidence of its belonging to the objective idea of law. The second is firmly rooted in a voluntarist approach to positivism, namely that the presence of the rule in many systems is evidence of state consent. The third is rooted in concerns about the democratic validity of international law, particularly in a postcolonial context, and takes national adoption of a rule as a kind of warrant for its production through democratic processes.

What are the alternatives? First, regarding commonality or representativeness, I agree with Weil, Verhoeven, and others that this quest for a universally shared body of legal rules or concepts is probably futile.

Nor is it necessarily to be wished for. The heterogeneity and diversity of legal systems around the world need not be seen as an obstacle to overcome but rather as a source of richness. But if general principles are to be a viable source of law in a heterogeneous society, this source will have to be rethought.

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The legal traditions of the world could come to be treated as resources on which international jurists can draw in seeking to solve problems and disputes, but the pretence — in most cases, it is no more than that — of demonstrating the commonality or representativeness of a legal rule would fall away. This would mean that the validity of a general principle would have to be grounded in the soundness and persuasiveness of legal argumentation rather than in claims about the objective nature of law or implicit state consent.

An advantage of this approach is its honesty.

John Gardner

Rather than asserting the commonality of a general principle without providing evidence in support of this assertion, judges could present the actual line of reasoning that led them to identify a particular principle as useful or relevant. One lesson that emerges fairly clearly is the importance of considering a rule not as a discrete, autonomous entity but as part of a much larger and very complex narrative. International jurists should treat municipal legal systems and the societies in which they are embedded as sources of ideas or inspiration rather than as machines from which parts can be extracted and inserted elsewhere.

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Cite Citation. Permissions Icon Permissions. Schachter notes the relevance of municipal law for filling in gaps in emerging areas of international law: O. Schachter, International Law in Theory and Practice , at The author is not discussing the mining of municipal environmental law for general principles of international law, but rather reference to municipal law in the process of drafting international conventions.

His position is more akin to natural law thinking, looking for general principles in an objective idea of law: Case concerning Pulp Mills on the River Uruguay Argentina v. Trail Smelter Arbitration United States v. Case concerning Pulp Mills on the River Uruguay, supra note 5. I have taken this question from Karen Knop, who posed it in a different context, namely the domestic application of international law. Petman and J. See, e. This approach is not novel. Cassese and M. On the debates surrounding the inclusion and definition of general principles of law in the PCIJ Statute see Cheng, supra note 13, at 6—21; P.

Hart famously denied that international law has secondary rules: H. Hart, The Concept of Law 2nd edn, , at But the doctrine of sources provides a perfect example of such rules. This position has its detractors: J. Verhoeven, Droit international public , at On the other hand, M. He predicted that general principles formed through comparative law studies would be particularly influential in emerging areas of international law having to do with welfare, such as health, food, transportation, and management of resources as well as economic development: ibid. Rudolph B. On the customary validity of this rule of reception see: J.

Combacau and S. Delmas-Marty et al. Whereas in the judgment itself, the Court declined to apply the concept of mandate as a general principle: ibid. Grounding the validity of general principles in the international conventional or customary rule of reception is consonant with a formal approach, such as that espoused by Hans Kelsen.

How to MAINTAIN motivation with the Law of Attraction (or in general)

However, this will probably not be sufficient from the point of view of a voluntarist conception of validity in international law, which requires states to consent to be bound. Boas and W. Examples of cases in which an attempt has been made to survey a wide range of municipal legal orders include Prosecutor v. Raimondo notes that the judges of the PCIJ and the ICJ did not and do not undertake comparative research to determine whether a given principle is common to a range of legal systems: Raimondo, supra note 19, at Verhoeven, supra note 16, at Georg Schwarzenberger, in his foreword to Bin Cheng's study of general principles, calls upon comparatists to inform international jurists of commonalities among municipal legal systems: Schwarzenberger, supra note 13, at xii.

Rudolph Schlesinger, who notes that judges tend to proceed on the basis of hunches, concurs with Schwarzenberger: Schlesinger, supra note 13 at De Frouville draws a distinction between comparative law and the identification of general principles, noting that the methodology of the former requires rigorous and comprehensive research because its purpose is to enhance knowledge of law, while the judge seeking to fill a gap in international law through reference to general principles is performing a normative rather than a scientific function: De Frouville, supra note 28, at While I generally agree with De Frouville's characterization of both comparative law and the identification of general principles, I note that there is another aspect to comparative law, namely the processes through which legal systems influence one another.

In this respect in particular, international jurists have a good deal to learn from comparatists. They are: chthonic; talmudic; civil law; islamic; common law; hindu; and asian: ibid. Verhoeven notes that on one occasion on which a party before the ICJ presented extensive documentation on municipal law, the Court does not appear to have taken it into account: Verhoeven, supra note 16, at Tunkin rejects the notion that there could be any but superficial resemblance between rules of socialist and bourgeois legal systems.

Weil, supra note 35, at — See also Verhoeven, supra note 16, at , citing Weil with approval. In other words, international jurists can draw inspiration from the substance of domestic rules, but the fact that a rule exists in a range of domestic legal systems does not mean that it is valid as an international norm: Weil, supra note 35, at Reimann and R. Schlesinger, supra note 13, at ; this argument is probably closest associated with Jenks: C.

Jenks, The Common Law of Mankind Zweigert and H. It is well worth reading the further discussion of specific performance in common and civil law. Nelken and J. Feest eds , Adapting Legal Cultures , at Berman and M.

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DePaul and W. However, it is also essential to law that it must be held to claim legitimate authority. What kinds of things can claim legitimate authority? Some important ones, which have in time developed into substantive rights, are the following:. This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. Introduction to the Study of the Law of the Constitution. In Jayasuriya, Kanishka ed.

Wood eds , Nation, Language and the Ethics of Translation , at Prosecutor v. The reasons on which the Tribunal relies in remitting the case to a trial chamber were set out in the separate opinion of Judges McDonald and Vohrah, supra note 28, at paras 2ff. The accepted sources of international law upon which the ICTY may draw are restricted to well-established customary law in order to maintain adherence to the nullum crimen maxim.

Section Number:. Type: Act Resolve. Year: House All Representatives House Clerk. Special Events. General Laws. Search Search the Legislature Search. Go Directly to a General Law Chapter. While reasonable efforts have been made to ensure the accuracy of the data provided, do not rely on this information without first checking the Official Edition of the General Laws of Massachusetts.

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