Comparative Law

This year we celebrate the 800 th anniversary of the promulgation of Magna Carta. Amongst the great number of initiatives for this event, Professor Mark Hill QC and the Reverend Robin Griffith-Jones have edited an interesting book, which gives a detailed account about the origins of Magna Carta, the social and political context of the time, and the religious background which forms the very foundation of the main principles of the Charter. I am neither an historian of law, nor a specialist in public law, nor an expert in the field of law and religion. I try only to be a humble comparatist, that is, a “strange” person, because comparative law itself is “strange”, in the sense that, unlike other fields of law studies, it is not a body of rules, but a way of legal learning, looking at law as a phenomenon which is relative and universal at the same time, and trying to identify the profound features which characterize the form and substance of a legal system. I dare to venture gingerly in...

This essay aims at reflecting on the persistent relevance of the traditional distinction between ‘written’ and ‘unwritten’ law as an essential feature of the English legal tradition, in order to better understand the current discussion concerning the enactment of a written Constitution for the United Kingdom, after the wide public consultation launched in 2014 by House of Commons. Three main aspects are considered: the difference between the idea of Rule of law and the continental idea of Staatsrecht, the concept of parliamentary sovereignty, the relationship between statute law and case law. It will be argued that even if a written constitution should ever see the light in the United Kingdom, it will presumably have a very particular status. A peculiarly ‘British’ one. Ermanno Calzolaio*

Keluarga tidak memiliki kesetaraan, Artikel ini bertujuan untuk mengetahui pembaharuandan transformasi Hukum Keluarga di dunia Islam .Penelitian ini merupakan kepustakaan, dengan tipe penelitian deskriptif analitik, Pendekatan yang digunakan ialah interdisipliner yaitu pendekatan komparatif, yuridis, filosofis, dan historis, adapaun sumber penelitian ini menggunakan sumber primer buku-buku Hukum sumber sekunder seperti tesis, disertasi, dan artikel jurnal,

La buena fe es uno de los conceptos más complicados y debatidos en el derecho contractual comparado, como un niño problemático que nadie puede anticipar o controlar 1 . Mientras unos ven a la buena fe con cautela 2 o simplemente la rechazan 3 , otros la consideran un deber general -o incluso un "principio"-que aplica a toda la vida del contrato 4 . Para comprender estas perspectivas antitéticas es necesario analizar a la buena

The book discusses citizen participation in territorial and urban planning within Ibero-American contexts, exploring legal frameworks, challenges, and best practices. This is the chapter about Brazil.

Context of Citizen Participation in Brazil
The text discusses the evolution and current state of citizen participation in urban and territorial planning in Brazil, highlighting its legal framework and practical implications.
- Brazil is a federal republic with 26 states and over 5,570 municipalities, each required to create a Master Plan if they have more than 20,000 inhabitants.
- The 1988 Federal Constitution emphasizes administrative decentralization and municipal autonomy in urban planning.
- Urbanization has rapidly increased, with over 84% of the population living in urban areas by 2022, leading to significant challenges like the growth of favelas and infrastructure issues.
- Citizen participation aims to enhance transparency, allowing citizens to influence urban planning and align government policies with community needs.

Legal and Political Framework for Participation
The legal and political landscape for citizen participation in Brazil is complex and shaped by historical events and constitutional provisions.
- The 1988 Constitution introduced elements of direct democracy, allowing for plebiscites, referendums, and popular initiatives.
- The National Movement for Urban Reform (MNRU) was pivotal in advocating for constitutional provisions that institutionalized citizen participation in urban planning.
- The Participatory Budgeting initiative in Porto Alegre, started in 1989, allowed citizens to decide on budget allocations, influencing over 170 municipalities.
- The National Cities Council was created in 2004 to discuss local policies, but its influence is limited due to its consultative nature.

Citizen Participation in Urban Planning
Citizen participation in urban planning in Brazil is mandated by law but faces challenges in implementation and effectiveness.
- The Statute of the City (2001) outlines the necessity of citizen participation in urban planning processes.
- Participation is required in the formulation, execution, and monitoring of urban development plans.
- The lack of clear guidelines on participation methods leads to judicial challenges and market influences in urban planning.
- Examples from São Paulo and Florianópolis illustrate the complexities and legal disputes arising from insufficient participatory processes.
Development of Citizen Participation Mechanisms
The evolution of citizen participation mechanisms in Brazil reflects the transition from authoritarianism to democracy.
- The Statute of the City established democratic management through citizen involvement in urban planning.
- The law mandates public hearings and consultations, but lacks specific criteria for implementation.
- Judicial challenges have arisen due to perceived inadequacies in participatory processes, as seen in São Paulo and Florianópolis.
- The need for clarity in participation guidelines remains a significant issue affecting the effectiveness of urban planning.
Main Instrument of Urban Planning: Master Plans
Master Plans serve as the primary tool for urban development and require citizen participation in their formulation.
- The Statute of the City defines the Master Plan as essential for urban policy and mandates public participation in its creation.
- Master Plans must be reviewed every ten years, but the lack of clear participation guidelines can lead to legal disputes.
- São Paulo's Master Plan faced judicial challenges due to insufficient public hearings, highlighting vulnerabilities in the process.
- The dual nature of participation—executive and legislative—requires engagement from both the municipal executive and legislative bodies.

Prior Participation in Urban Planning
Prior participation involves public engagement in the early stages of urban planning, but faces challenges in effectiveness and representation.
- São Paulo's 2014 Master Plan included 114 public hearings but was deemed insufficient by the State Public Ministry, leading to legal action.
- Florianópolis experienced similar issues, with public hearings criticized for not adequately representing vulnerable communities.
- The lack of clear criteria for participation often results in judicial interventions that delay urban planning processes.
- Effective communication and representation remain critical challenges in ensuring meaningful citizen engagement.

Continuous Participation in Urban Management
Continuous participation mechanisms, such as municipal councils, provide ongoing opportunities for citizen involvement in urban governance.
- Municipal councils, like Belo Horizonte's COMPUR, combine consultative and binding functions, allowing for direct citizen influence on urban policy.
- Porto Alegre's CMDUA has broad powers to oversee urban planning and development, promoting citizen engagement in decision-making.
- These councils serve as forums for addressing urban management challenges and preventing legal disputes.
- The effectiveness of continuous participation relies on the active involvement of diverse community representatives and stakeholders.
Impact of COVID-19 on Urban Governance
The COVID-19 pandemic delayed the election of urban management for Porto Alegre, leading to public unrest and discussions on the powers of participatory councils.

The management period of 2018-2020 was supposed to be elected in 2020 but was postponed to 2024 due to the pandemic.
This delay caused dissatisfaction among the population, as noted by Fedozzi (2023).
The review of Porto Alegre's master plan includes debates on limiting the powers of the CMDUA, particularly regarding binding decisions.

Challenges of Participatory Urban Councils
Participatory councils in Brazil face challenges regarding their influence on property rights and the need for transparency in their elections.

There is a constitutional separation between property rights and construction rights, yet participatory councils make binding decisions affecting these rights.
Questions arise about the limits of legislative powers and the transparency of participatory council elections compared to elected councilors.
São Paulo's example shows that participatory councils can have significant roles, but voter turnout remains low, indicating a need for better public engagement.

Examples of Participatory Councils in São Paulo
São Paulo has established participatory councils that engage citizens in urban planning and resource allocation, though challenges remain in public participation.

The Council of Participatory Urban Operations involves community members in urban interventions and resource management.
The Municipal Participatory Council (CPM) operates in 32 subprefectures, with direct elections; however, initial voter turnout was low, averaging 500 votes per subprefecture.
In 2023, the CPM saw increased engagement with nearly 50,000 voters, reflecting growing political commitment among citizens.

The Role of Historic Preservation in Meeting Population's Needs
Citizens are using the "tombamento", a legal mechanism to protect historical and cultural sites from real estate development pressures in São Paulo.
Tombamento is a legal tool aimed at preserving properties of historical, cultural, and environmental value.
Local associations have mobilized to request tombamento for areas threatened by real estate development, such as the "Mancha dos Bombeiros."
A recent resolution recognized partial tombamento, highlighting the limits of traditional participation methods and the search for alternative preservation strategies.

Conclusions on Citizen Participation in Urban Planning
- Brazil's efforts in citizen participation in urban planning reveal structural paradoxes and the need for clearer regulations to enhance effectiveness.
- The legal obligation for citizen participation coexists with a lack of clear regulations, leading to judicial conflicts and confusion.
- The complexity of governance structures complicates the effectiveness of participatory processes, often obscuring transparency.
- A national regulation is necessary to balance municipal autonomy with minimum standards for effective citizen participation in urban planning.

1. Este ensaio é resultado do grupo de pesquisa "Transformações nas teorias sobre o processo e o Direito processual", vinculado à Universidade Federal da Bahia, cadastrado no Diretório Nacional de Grupos de Pesquisa do CNPq no endereço: [dgp.cnpq.br/dgp/espelhogrupo/7958378616800053]. O grupo é membro fundador da "ProcNet -Rede Internacional de Pesquisa sobre Justiça Civil e Processo contemporâneo" []. O ensaio também é resultado do grupo de pesquisa "Sistema brasileiro de justiça multiportas: acesso, boas práticas, problemas e tendências", vinculado à Faculdade Baiana de Direito.

In recent decades, the concept of authority has been treated and discussed almost exclusively as a concept based on reasons of some kind within a broader theoretical framework that views legal philosophy (only) through the lens of practical reasoning. Based on these assumptions, much of the discussion has focused on what kind of reasons are involved, what impact the presence of authority has on the practical reasoning of agents, whether or not there is unity in practical reasoning, and whether or not – and in what sense – the outcome of that reasoning involving those kinds of reasons is conclusive.

The aim of this chapter is to critically analyse this choice and its theoretical and practical consequences. First, through the analysis of Joseph Raz’s and John Finnis’ theoretical frameworks, I will show how concepts of authority such as Raz’s and Finnis’ are intrinsically linked –and heavily rely on– the endorsement of the idea that legal philosophy as a branch of practical philosophy and the endorsement of a so-called dominant position about practical reasoning, which characterises it as unitary under moral precepts. Second, I will points out some issues that can be tracked to this dependence. One set of problems is connected to the priority of the committed concept of authority based on moral acceptance, and the difficulties it implies for evaluating legitimacy. Another set is connected to the specific conception of acceptance they are built on, how it impacts on key notions such as effectiveness and compliance, and the difficulties the resulting concepts face at a conceptual, epistemic, and practical levels. Finally, a last set relates to how the strong dependence on these commitments might affect the plausibility and usefulness of these concepts.

Environmental history has emerged as a highly relevant topic in recent historical studies. At the heart of which is the study of the history of people related to the environment. We will focus on one of the two perspectives on history: “ History from Above” and “History from Below”. The study of environmental history also begins from the perspective of “History from Below”. Because the people of the lower classes are always closely involved with the environment. One notable example of this relationship between people and in the environment is the East Kolkata Wetlands, an area spanning 125 square kilometres in the eastern part of Kolkata with 260 fish ponds. This wetland is absorbing the cities clods like Neelkantha Shiva. In fact there is no separate sewage system in Kolkata. Everyday 910 million litres of liquid waste from the city ends up  in this wetland. The local people of East Calcutta wetlands here use natural methods to purify the wastewater with their creative knowledge. As a result, they annually  produce 20,000 tons of fish, 150 tons of vegetables, 16,000 metric tons of rice by using this purified water. Not only in productivity, but also absorbs about 60% of the city’s carbon. Most of which is given to the city dwellers. The clean air, the fish, the vegetables and the fragrance of the beads, this wetlands give back to the city dwellers everything that is good, everything that is pleasant. The local people are the ones who churn out nectar by churning the mechanical clods of the city. The people adjacent to the wetlands have saved the environment of Kolkata city by using their creative traditional knowledge, and have developed a metabolic relationship between Kolkata and its surrounding environment. In the words of environmentalist Ghosh which is well known as “Living Creatively With Nature”. But this people remain marginalized to the main stream of society. The resident of the East Kolkata Wetlands are treated as “peripheral or “other” by the mainstream city dwellers. This situation replace a type of “Cognitive Apartheid” or “ knowledge-based discrimination”, as described by environmentalist Dhrubajyoti Ghosh. This term highlights the exclusion of this people’s traditional knowledge and practices from the main stream recognition and value systems. According to Marxist theory, when wealth is  concentrated from villages to cities, cities become powerful in all aspects, and as a result, marginal areas remain marginal. This evident in the perception of the wetland community by urban dwellers, who often see them as “backword” or less significant. Despite this margin these people continue to perform essential environmental function, creating a “living creatively with nature” model that sustains both their livelihoods and the cities ecological health. This discussion shedding light on marginalisation, livelihoods, creativity  and the relationship between people and environment of East Kolkata Wetlands.

Artificial intelligence-based technologies offer significant advantages in the diagnosis and treatment of diseases, while simultaneously introducing new risk factors of harm. To prevent the occurrence of such harm or mitigate its effects, the AI Act imposes specific organizational and risk management duties on healthcare providers that employ intelligent systems. Non-compliance with these prescriptions not only triggers the administrative sanctions but also gives rise to compensatory liability. This paper frames such liability within the sphere of contractual responsibility, deriving it from the breach of preparatory and accessory duties related to the medical service, which find their doctrinal foundation in the general clause of diligence. The deployment of digital tools does not exempt the physicians from liability; on the contrary, the professionals are required to maintain an active and autonomous role, critically assessing the outputs generated by the system. Failure to do so may result in tortious liability for damage caused by negligence, imprudence, or lack of expertise. The system of legal protections is completed by other obligations not directly linked to the medical treatment itself, but which protect other legally relevant interests, such as the patient's right to informed consent and the right to the confidentiality of personal data. Violations of these obligations may be subject to sanctions by competent supervisory authorities and may also entail contractual liability for any resulting harm.

In the Lusophere, under the appearance of homogeneity of law, due to the influence of Portuguese law, are hidden linguistic and anthropological aspects that are still untied from the State institutions and formal law of the new independent Countries. Thus, this paper, after an overview of the historical events of Portuguese law -from the presence of ius commune in Portugal, to the colonial era, to the post-independence legal systems -focuses on the linguistic and anthropological aspects of millions of people, only conventionally of Portuguese mother tongue and who regulate their lives according to spontaneous unwritten rules. Comparing within the Lusophere, this paper carries out its observation from three different perspectives: law, language, and anthropology. Portuguese now ranks sixth in terms of the number of native speakers and is spread across at least four continents; therefore, it is surprising to observe the scant consideration within the comparative studies for the law and language of Lusophone areas, with few exceptions and mostly confined to native authors. Even more unexplored is the field of comparative law among Portuguese-speaking countries, and except for a few contributions between Portuguese and Brazilian law, attention to Angola, Mozambique, Guinea Bissau, Cape Verde, São Tomé e Princípe, Equatorial Guinea and East Timor is sporadic, rare or nonexistent. This scenario appears to be due to a kind of self-referentiality of the Lusophone legal systems, mainly due to a strong academic dependence on Portuguese universities, a common erudite and administrative language, and a low diffusion of foreign language study. A decolonization of law is for these reasons desirable and, instead of being perceived an intimidating path, should be seen as a chance for new development opportunities.

The High Court of Kenya recently handed down a decision that reinforces the role of courts to protect the constitution against executive overreaches. To constitutional lawyers and academics, the decision is a triumph for constitutionalism and the rule of law. In this piece, we discuss lessons that may be drawn from the decision for constitutional consolidation (or amendment) and the role of courts in South Sudan. One lesson is that courts, as custodians of the constitution, must be on guard at all times to ensure the Executive implements the constitution in accordance with its terms, including constitutional amendments. This requires courts' courage

Il volume riunisce i saggi presentati a Pisa nel corso di due cicli seminariali incentrati sul ruolo dei giudici nell'ordinamento multilivello, nell'ambito del progetto STALS (Sant'Anna Legal Studies, www.stals.sssup.it). Apre il libro un lungo contributo introduttivo di Ernst Ulrich Petersmann (European University Institute), tra i massimi esperti sul tema, mentre il capitolo conclusivo, che propone una riflessione di taglio filosofico sulla funzione del rule of law nell'evanescente sistema policentrico del diritto internazionale, è affidato a Gianluigi

An Imam-led Community: Demographics, Social Cohesion, and the Authority of Cape Muslim Leaders in 19th-Century Colonial Cape Town



ABSTRACT
This subsection analyses an 1839 community census, meticulously compiled by Imams in colonial Cape Town, to highlight the profound social and administrative authority of Muslim religious leaders. The data, which meticulously records the number of men, women, and children within each Imam’s congregation, transcends a simple demographic survey. It reveals a highly organized, cohesive, and self-governing community led by a hierarchy of spiritual leaders. By contextualizing the census within the broader colonial landscape, this study argues that the Imams’ census-taking was a strategic act of self-determination, a means of asserting communal autonomy and constructing a parallel power structure that prioritized religious and social bonds over colonial control.
Key Words:
Imam; demographics; social cohesion; British colonial Cape Town; colonial landscape; communal autonomy; power structure; social bonds; census-taking; self-governing community, and hierarchy of spiritual leaders.

La proposta di istituzione di sezioni commerciali distrettuali ed il suo tramonto. Le sezioni specializzate in materia di proprietà industriale ed intellettuale (ora, "Tribunali delle imprese"). -3. L'esperienza spagnola: i Juzgados de lo mercantil. -4. Corti federali statunitensi e specializzazione dei giudici. -5. Il dibattito sulla specializzazione dei giudici in Italia 1 . Secondo un testo a ragione giudicato fondamentale per la comprensione del fenomeno delle controversie complesse, ossia lo statunitense Manual for Complex Litigation ( 2 ), la complessità della causa costituisce un problema da risolvere mettendo in atto tecniche processuali che consentano una gestione efficiente della controversia, nella prospettiva che questa giunga ad una "just resolution"( 3 ) in tempi rapidi, a costi (relativamente) contenuti e nel pieno rispetto della fairness dovuta alle parti. Il problema della complex litigation, insomma, è essenzialmente un problema di case management: spetta al giudice, se possibile in collaborazione con i difensori delle parti, trovare la "ricetta" più adatta alle specifiche esigenze del caso concreto, utilizzando al meglio gli strumenti procedurali che le norme mettono a sua disposizione, con l'aggiunta di quel pizzico di creatività che può rendersi necessario, di volta in volta, per pianificare un proficuo sviluppo della adjudication ( 4 ). Secondo il Manual, la complex litigation non è un "monolite"( 5 ); di conseguenza, non sono possibili né una definizione a priori di cosa intendere per controversia complessa, né un'elencazione esaustiva delle materie in cui con maggiore frequenza le controversie presentano aspetti di complessità. È solo nel processo che la complessità emerge e va gestita nella dimensione della procedura applicabile al caso concreto.

La presente obra versa sobre el que sea posiblemente el gran invento de este siglo: los autómatas inteligentes. La investigación del autor trata de determinar su naturaleza jurídica (¿qué son?) y propone para ellos un régimen jurídico-privado básico, en tanto que nuevos ciudadanos y agentes en el tráfico jurídico-económico. Para ello, recurre a una metodología interdisciplinar, de carácter histórico, social, filosófico y jurídico, así como al derecho comparado, a fin de poder dar una respuesta legislativa adecuada.

This article focuses international legal scholars' attention on consular relations, consular work, and related international law. It does so for two main reasons. First, as scholars of diplomatic history and international relations have observed, consular work is of growing significance in global affairs. Second, there are largely unrealized possibilities for thinking about international law, and grappling afresh with its dilemmas, through a consular optic. International law conducted through consular offices and officials advances views of the international legal plane, its key actors, and relations among them, that are distinguishable from those advanced by diplomacy and international law as traditionally conceived. This article theorizes this distinctive logic as consular internationalism. Its argument is that consular internationalism is a richer resource for thought and practice in international law than commonly acknowledged. It is especially relevant, this article aims to show, for analyzing historical and contemporary entanglements of imperial and commercial power, grappling with the role of lay people and unofficial communities in shaping international legal order, and, potentially, supporting anti-hierarchical struggles.

The civil law tradition considers specific performance the primary remedy for non-performance of obligations, as opposed to awarding damages and termination of contract. In recent years, creditors have rarely sought specific performance due to its costly and complex enforcement. This article focuses on whether specific performance is still efficient in legal practice. Since the fulfillment of monetary obligations is always possible in specie, the article deals with the fulfillment of non-monetary obligations and the enforcement of the court order of specific performance. Moreover, this article focuses on the general rules of specific performance in contract law and also analyses the possibility of demanding the fulfillment of obligations arising from a lease agreement-as lease agreements are distinguished by their continuing performance of obligations being a crucial part of successful commercial practice.

The Civil Code of Lithuania re-established enterprise (business) as a self-sufficient object of civil rights and introduced several legal transanctions with it, the so-called asset deals (sale-purchase of enterprise and lease of enterprise). Since every transfer of enterprise comprises the transfer (delegation) of debts to the new owner, the legal regulation on asset deals must be orientated to the protection of creditors' rights. However, the legal practice showed that the existing legal regulation regarding asset deals, in particular the mechanism of the protection of creditors' rights, is complex, and thus unappealing to legal practitioners. Therefore, this research focuses on an analysis of the legal regulation of the mechanism of the protection of creditors' rights applicable to asset deals and its impact on the civil turnover of enterprise as an object of civil rights. In order to thoroughly examine the problem of the efficient mechanism of the protection of creditors' rights, the national legal regulation is analysed in comparison to the legal systems of France, Germany and Russia.

The Civil Code of Lithuania re-established enterprise (business) as a self-sufficient object of civil rights and introduced several legal transanctions with it, the so-called asset deals (sale-purchase of enterprise and lease of enterprise). Since every transfer of enterprise comprises the transfer (delegation) of debts to the new owner, the legal regulation on asset deals must be orientated to the protection of creditors' rights. However, the legal practice showed that the existing legal regulation regarding asset deals, in particular the mechanism of the protection of creditors' rights, is complex, and thus unappealing to legal practitioners. Therefore, this research focuses on an analysis of the legal regulation of the mechanism of the protection of creditors' rights applicable to asset deals and its impact on the civil turnover of enterprise as an object of civil rights. In order to thoroughly examine the problem of the efficient mechanism of the protection of creditors' rights, the national legal regulation is analysed in comparison to the legal systems of France, Germany and Russia.

The civil law tradition considers specific performance the primary remedy for non-performance of obligations, as opposed to awarding damages and termination of contract. In recent years, creditors have rarely sought specific performance due to its costly and complex enforcement. This article focuses on whether specific performance is still efficient in legal practice. Since the fulfillment of monetary obligations is always possible in specie, the article deals with the fulfillment of non-monetary obligations and the enforcement of the court order of specific performance. Moreover, this article focuses on the general rules of specific performance in contract law and also analyses the possibility of demanding the fulfillment of obligations arising from a lease agreement—as lease agreements are distinguished by their continuing performance of obligations being a crucial part of successful commercial practice.

The Civil Code of Lithuania re-established enterprise (business) as a self-sufficient object of civil rights and introduced several legal transanctions with it, the so- called asset deals (sale-purchase of enterprise and lease of enterprise). Since every transfer of enterprise comprises the transfer (delegation) of debts to the new owner, the legal regulation on asset deals must be orientated to the protection of creditors’ rights. However, the legal practice showed that the existing legal regulation regarding asset deals, in particular the mechanism of the protection of creditors’ rights, is complex, and thus unappealing to legal practitioners. Therefore, this research focuses on an analysis of the legal regulation of the mechanism of the protection of creditors’ rights applicable to asset deals and its impact on the civil turnover of enterprise as an object of civil rights. In order to thoroughly examine the problem of the efficient mechanism of the protection of creditors’ rights...

The Civil Code of Lithuania re-established enterprise (business) as a self-sufficient object of civil rights and introduced several legal transanctions with it, the socalled asset deals (sale-purchase of enterprise and lease of enterprise). Since every transfer of enterprise comprises the transfer (delegation) of debts to the new owner, the legal regulation on asset deals must be orientated to the protection of creditors’ rights. However, the legal practice showed that the existing legal regulation regarding asset deals, in particular the mechanism of the protection of creditors’ rights, is complex, and thus unappealing to legal practitioners. Therefore, this research focuses on an analysis of the legal regulation of the mechanism of the protection of creditors’ rights applicable to asset deals and its impact on the civil turnover of enterprise as an object of civil rights. In order to thoroughly examine the problem of the efficient mechanism of the protection of creditors’ rights, ...

Lietuvos Respublikos civiliniame kodekse įtvirtinus atskirus sandorius dėl įmonės, kilo abejonių dėl sių sandorių teisinio reguliavimo tinkamumo ir pakankamumo. Teisinė praktika parodė, kad dabar galiojantis sandorių dėl įmonės perleidimo (įmonės pirkimo-pardavimo ir įmonės nuomos) teisinis reglamentavimas yra sudėtingas ir ne itin patrauklus teisininkams-praktikams, nes Lietuvoje įmonių, kaip turtinių kompleksų, civilinė apyvarta pagal galiojantį teisinį reglamentavimą beveik nevyksta. Lyginant įmonės pirkimo–pardavimo ir nuomos sutarcių teisinį reglamentavimą su kitomis pirkimo–pardavimo ir nuomos sutarcių rūsimis, tampa akivaizdu, kad įmonės pirkimui– pardavimui bei nuomai taikomi griežtesni sutarties formos, sudarymo tvarkos ir kreditorių teisių apsaugos reikalavimai. Dėl to, kaip rodo teisinė praktika, salys dažnai sudaro atskiro turto pirkimo–pardavimo arba nuomos sandorius, o ne įmonės pirkimo–pardavimo ar nuomos sutartį, taip isvengdami minėtų imperatyviųjų reikalavimų taiky...

Il contributo analizza congiuntamente le pronunce G.K. e a. e EPPO/I.R.O. e F.J.L.R., primi interventi della Corte di giustizia dell’Unione europea sulla Procura europea (EPPO), evidenziandone i profili critici. Pur costituendo un punto di partenza, tali decisioni non si distinguono per un approccio costruttivo o evolutivo, mancando una lettura teleologica coerente con la natura sovranazionale dell’EPPO. Se la tutela dei diritti fondamentali rappresenta un pilastro imprescindibile dello spazio giudiziario europeo, essa non dovrebbe compromettere la funzionalità e l’effettività operativa dell’organo. Le pronunce in esame, invece, sembrano privilegiare schemi e principi tipici della cooperazione giudiziaria tradizionale, quali il reciproco riconoscimento e la reciproca fiducia, poco adatti alla struttura unitaria e sovranazionale della Procura europea. Si sostiene, pertanto, la necessità di un mutamento interpretativo che valorizzi le specificità istituzionali e operative dell’EPPO.

This book aims to identify the sociological reasons that resulted in the perceived lack of authority of precedents in civil law systems, starting from the premise that common law systems rely on precedents, while civil law systems do not. The reasoning is based on the sociology of law, mainly on Max Weber’s theory, legal theory, and constitutional law.

English common law, seen by Weber as a law devoid of formal rationality mainly because it does not allow for generalization and comprehensiveness, became a predictable system through stare decisis. This serves to highlight not only that it is not to be confused with common law but especially to clarify that “binding precedents” are necessary as the law moves away from calculability.

The transformation of civil law due to the impact of constitutionalism, the increasingly widespread use of general clauses, and the evolution of the theory of interpretation eliminated the pretensions of logical positivism and, consequently, the predictability upon which it would be achievable. However, if the law contemplated by Weber ceased to exist and the new law came to depend largely on the subjectivity of the judge, this does not mean that society could remain helpless and devoid of guarantees of predictability and equality, as the new profile of civil law could not be compatible with a coherent legal order and a rational distribution of justice.

In the end, the book seeks to demonstrate the fundamentality of precedent for the unity and development of law, clarity and generality, promotion of equality, institutional strengthening, limitation of state power, predictability, economic rationality, respect for the law, and increased personal responsibility.

El artículo 15 del Código Penal chileno dispone quienes son considerados autores de un delito y no refiere a los que cometen el hecho por medio de otro. Éstos, no obstante, fueron incluidos en el Proyecto de Código Penal de 1946 y en el Anteproyecto de Nuevo Código Penal (ANCP) de 2005, y se contemplan, de tiempo ya, en codificaciones penales extranjeras, v. gr., Alemania, Portugal, España. De la omisión pudiere colegirse que en Chile se constituye una laguna de punibilidad para el autor mediato. Mas, y acorde con la normativa vigente, toda inferencia de impunidad merece rechazo ya que, a fines de sanción, basta el correspondiente tipo penal de la Parte Especial, cuya aplicación no vulnera lex praevia, scripta, certa, y stricta, el llamado principio de legalidad, pues el pertinente castigo, junto con el ilícito al que pertenece y Tribunal que debe juzgar, se ha establecido con anterioridad a la perpetración. Autor, autoría mediata, laguna de punibilidad.

The article discusses the problem of the indeterminate defendant in European tort law systems and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference and Principles of European Tort Law. The given issue relates to a situation where there is a damage caused by one factor, yet upon available evidence one may indicate a few potential factors which might have led to the damage, but it cannot be ascertained which factor was the actual cause of it. The problem is addressed with reference to two scenarios. First, when there is a limited and known number of persons acting tortiously, each of whom potentially might have led to the damage, but only one of them had actually caused it. Second, when it is certain that one tortfeasor from the undetermined group of tortfeasors caused damage to some of the injured persons from the group of the injured persons, but it cannot be established precisely which tortfeasor caused damage to precisely which injured person. In comparative law analysis, one may find various attempts to deal with the given issue, which come from the balance of ratios given to different solutions, as well as the legal possibilities or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint and several liability, and proportional liability. Those solutions are discussed in article in more detail with conclusion that the bold proposition of proportional liability presented in Principles of European Tort Law seems to be the most appropriate.

The great economic crisis -the worst and longest at least since the post-war period, which is still holding a large part of Europe in an unequal grip -has a constitutional dimension that has certainly been overlooked, compared to other more direct and visible repercussions. In recent years the measures put into force by supranational institutions, both outside and within the traditional channels of EU law, to counteract the sovereign debt crisis by deeply modifying the economic governance of the Union, have in fact ended up questioning some of the most established paradigms that have historically forged -and constitutionally legitimised -the process of 'integration through law'. According to the most credible hypothesis, European integration should be conceived -particularly in its foundation -as a political project, the implementation of which is essentially left to economic processes mediated by the law. The German 'Ordoliberal' theorists were the group that grasped the meaning of this project better than others, 1 identifying the constitutional anchorage of the newly-born European Economic • Paper presented on June 13, 2014, at the

This research  explores the phenomenon of legal pluralism in the South Asian legal system with special emphasis on the continued relevance aspect  and resilience of customary law within modern legal frameworks. Despite the formal establishment of state-tuned  legal systems derived largely from colonial legacies and aftermath  post-colonial codification, customary norms—rooted in diverse indigenous traditions with religious practices, and community eccentric  adjudication which continue to shape the lived legal realities of millions across the region. So by drawing on comparative analyses from jurisdictions in India, Bangladesh, Pakistan, Nepal, and Sri Lanka basically  this study evokes  the complex interplay between state made law and non-state powerful  orders & customs.The paper examines how customary law works both in complement to and in time of political tension with formal legal systems particularly in areas such as personal laws land tenure regardless resolution and access to justice. This paper further investigates how courts and legislatures negotiate the legitimacy and admissibility of customary norms, principles and how such negotiations are influenced by factors including identity politics, rural-urban sub divides, gender dynamics  and legal reform agendas for a long time.This paper further investigates how courts and legislatures negotiate the legitimacy  and admissibility of customary rituals including principles and how such negotiations are influenced by factors including identity politics, religion,rural-urban sub-divides, gender dynamics,social justice and legal reform agendas for a long time. It further highlights how customary governance and indigenous regional jurisprudence interact with formal laws how legal hybridity shapes normative authority representing pluralism  and how these frameworks collectively influence state legitimacy of pluralistic society and access to justice.

A brief reflection is offered on the development of the concept of cause in the medieval period, emphasizing the rise of cause, while also underlining that it is still possible to find traces of abstraction in the medieval period. Particular attention is given to the law of the Kingdom of Aragon, which demonstrates the existence of abstract promises in this historical period.

Il commento alla decisione n. 33/2025 della Corte costituzionale indaga l’impatto di tale pronuncia nel quadro del diritto delle adozioni, muovendo dalla prospettiva del pluralismo dei modelli familiari. La valutazione della
Corte costituzionale, favorevole ad ammettere la persona singola tra coloro che possono adottare un minore straniero, evidenzia come la genitorialità monoparentale possa costituire un ambiente familiare stabile e armonioso, in linea con il superiore interesse del minore. Viene approfondito il punto di equilibrio tra autodeterminazione dell’adottante e tutela del minore, con uno sguardo anche comparatistico. Si sottolinea infine come la pronuncia della Corte apra a possibili future estensioni dell’istituto adottivo, in favore di coppie di conviventi o di persone unite civilmente.

This study aims to analyze and to discover how the principle of Independence and Impartiality of Ad Hoc Judges of Industrial Relations Court (PHI) in resolving disputes. The researchmethodused empiricaljuridicalresearchmethodwithconstructivismparadigm. Primary data were primary legal materials which consisted of legislation. This research used secondary law materials, namely court decision and tertiary law materials. The data were analyzed by using analytical descriptive analysis. The study found: (1) Differences between career judges and Judge of Hoc Law of the Republic of Indonesia Number 2 Year 2004 on Industrial Relations Dispute Settlement (PPHI Law) which is not followed by strict provisions on the obligation to maintain independence and impartiality that are significant to the principle independence or freedom. Judicial Power to the Ad-Hoc judges to the IRC (Industrial Relations Court) and the Ad-Hoc Judge of the IRC to the Supreme Court which appoints him on the proposal of ...

SOMMARIO: 1. L’obbligo di mantenimento dei figli: unita` o pluralita` della fattispecie? — 2. Il raggiungimento della maggiore eta` e i suoi riflessi sul mantenimento. — 3. Le modalita` di mantenimento dei figli maggiorenni nella crisi familiare. — 4. L’attribuzione di un assegno periodico: legittimazione e profili processuali.

Este artigo examina a viabilidade de implementar o modelo de controle judicial  responsivo,  proposto  por  Rosalind  Dixon,  à  prática  constitucional brasileira. A teoria do controle judicial responsivo prevê a variação na intensidade do escrutínio judicial conforme o grau de disfunção democrática presente em cada caso.  Diante  disso,  o  texto  explora  as  potencialidades  e  desafios  envolvidos  na proposta  de  adaptar  o  teste  da  proporcionalidade –atualmente,  o  modelo predominante  de  decisão  sobre  direitos  constitucionais  no  Brasil –para explicitamente  incorporar  variações  no  grau  de  escrutínio.  Aponta-se  que  a proposta  poderia  fortalecer  a  capacidade  do  Judiciário  brasileiro  de  reagir adequadamente  a  riscos  à  democracia  sem  comprometer  a  racionalidade  na justificação  de  suas  decisões.  No  entanto,  identificam-se  também  relevantes obstáculos:  (a)  a  fragilidade  da  aplicação  da  proporcionalidade  tal  como atualmente  aplicada,  (b)  a  ausência  de  uma  tradição  de  calibragem  do  escrutínio judicial  no  direito  constitucional  e  os  desafios  já  observados  na  sua  aplicação  no direito administrativo e (c) limitações institucionais à implementação de modelos de decisão complexos, como a alta carga de trabalho judicial. O artigo conclui que a  adoção  de  um  modelo  híbrido  no  Brasil  exigiria  não  apenas  aperfeiçoamentos metodológicos e institucionais, mas possivelmente também mudanças mais amplas na cultura jurídica nacional.