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მედიაციის მნიშვნელობა საერთაშორისო კერძოსამართლებრივი დავების გადაწყვეტის პროცესში
No full textThe normal functioning of the justice system existing in the state, which should ensure the satisfaction of the private interests of the sub- jects of law, should be evaluated as an expression of public and private interests. After all, the well-being of the subjects of law is significantly determined by the existence of a flexible dispute resolution system and mechanisms, the correct formation and implementation of which guarantees the stability of the civil turnover and the satisfaction of the interests of legal subjects. Despite the importance of the issue, ensuring that the legal subjects are offered fast and affordable forms of dis- puteresolution, remains to be a challenge. Achieving the mentioned goal becomes more difficult, when the dispute is loaded with international private law elements, is characterized by complexity in this way and its resolution is connected with a number of peculiarities. That is why, on the one hand, it is considered important to make changes in the law of Georgia “On Private International Law”, which will eliminate the risks of its misinterpretation. On the other hand, it is important to emphasize the role and importance of mediation in the process of resolving international private law disputes. Accordingly, following the legislative amendments, it is also considered important to raise public awareness in this direction and improve legal culture. The above-mentioned, significantly helps the formation of a chain of effective means of dispute resolution, where, on the other hand, an important place shall be given to the form of remote proceedings.
Keywords: alternative dispute resolution, mediation, legal proceedings
Introduction
Human history shows, that the existence of conflicts between people are inevitable. Therefore, one of the purposes of the existence of legislation is to neutralize them in order to ensure public order and peace.[1] Accordingly, the perfect functioning of the justice system operating in the state should be evaluated as a matter of interest for both - public and private law subjects. Regardless of the importance of the issue, which is related to the right to a fair trial, the overcrowdedness of the judicial system has historically been an actual issue and remains to be a challenge in the modern Georgian reality. The resolution of each dispute within the court system is associated with a long waiting period and the risks of violating the terms stipulated by the Civil Procedure Code of Georgia.
At the same time, it is recognized, that the internationalization of people’s relations in the modern world led to the rapid development of directions of law, which regulate legal relations “burdened with foreign law”. In private law, international private law has a dominant role in the process of regulating the relationship having the foreign element.[2] In some cases, the term “conflict of law” or the term “choice of law” is used as a synonym for private international law. It should be also noted that in the case of an international private law disputes, a decision must first be made - which state\u27s law should be applied in relation to a specific case.[3] After all, there are various legal systems in the world, which are more or less different from each other. And each system of law operates in a specific area. For example, French law applies to the territory of France, not England. And English law applies in England, not in France.[4]
Accordingly, in case, when there is a dispute loaded with a foreign element, which is subject to the sphere regulated by the international private law, its resolution becomes even more complex. First of all, the subjects of law have to determine the following issue: which state\u27s law should be applied to regulate the conflict; And only after that, the issue is assessed from a substantive point of view.
Therefore, in case of international private law disputes, the goal of offering legal subjects the means of quick and effective dispute resolution alternatives, becomes even more important. Achieving the mentioned goal should be considered possible through the development of alternative dispute means, among which mediation is the dominant form. Therefore, with legal regulation of mediation, the presentation of its importance in the process of resolving international private disputes should be considered a necessity for the development of the practice.
Considering the importance of the issue, the article discusses the importance of using mediation as a means of dispute resolution in the process of resolving international private law disputes and the existing challenges. At the same time, necessity of the changes in the law of Georgia “On Private International Law” is emphasized, because at the present time, the existence of defective regulation is evident, which can be used as a basis for its misinterpretation in practice.
As a methodological basis of the article, both general scientific- historical, as well as special- normative and comparative legal research methods are used.
Characteristics of international private law disputes
It is recognized that private international law as a branch of law, regardless of its name, is part of the national legislation of the states.[5] It answers the question of which state\u27s law should be used for the purposes of settling a specific legal relationship. According to the recognized approach, in order to qualify the relationship as an international private legal relationship, there needs to be a private legal relationship containing a “foreign element”. Such a relationship can exist in the following cases: a) if the subject of legal relationship is connected to a foreign element; b) the object of legal relationship is connected to a foreign element; c) legal facts, which must be confirmed, are connected to the foreign element.[6] The conclusion that the private international law belongs to the private law and not to the international law was finally solidified in the early the 1900s,[7] that is completely natural - international private law regulates the existing relations between subjects of private law.[8]
It should also be noted that mainly around the world and also in Great Britain, the term “private international law” is used as an alternative to the term “conflict law” used in the United States of America,[9] which is defined as the law on the applicable law.[10] And yet, when does the need to apply the law on private international law arise? It is clear that in the geographical area where the law is unified, there may not exist a coflict of laws and the need to resolve the relevant issue.[11] As mentioned, the necessity of private international law arises, when there exists a conflict of laws.
In any case, current events in the world, including the diversity of economic turnover, the development of modern technologies, or other circumstances affect the content and characteristics of the relationships between legal entities. In the world legal sphere, the number of cases where the foreign element exists, is increasing, which first of all raises the question of which country\u27s law should be used for the purpose of settling a specific legal relationship. And only after this issue is resolved, the dispute can be settled from a material-legal point of view. That is why, in the mentioned case, subjects of law have to solve a complex issue, the search for the possibility of timely resolution of disputes becomes even more urgent. The issue is important to the extent that an unified chain of dispute resolution mechanisms operating throughout the state should ensure the implementation of interests of the subjects of law. And in this direction, in the process of discussing international private legal disputes, it is important to highlight the role of mediation as a means of dispute resolution and its importance, because it is a form of dispute resolution that, considering its fundamental ethical values, has the ability to transform the existence of the society.
The essence of mediation as a means of dispute resolution and the expediency of its use in the process of resolving international private law disputes
For the purposes of determining the expediency of using mediation as a means of dispute resolution, in relation to the international private law disputes, it is important to represent the peculiarities of the case consideration through mediation.
What is mediation? Mediation is defined as a process in which a neutral third party helps disputing parties to resolve a dispute.[12] Since the 1980s and 1990s, different approaches have been formated in relation to alternative means of dispute resolution, namely mediation. According to the opinion of a part of the society, its functioning is evaluated positively, while the opinion of another part of society - is negative.[13] In any case, it is a fact, that in modern society, court proceedings are considered to be expensive and in most systems - an ineffective method of dispute resolution. The overcrowdedness of the city courts results in the fact that each civil legal dispute is being heard in court for years.[14] And the cases when mediation is completely unsuccessful are extremely rare. Even when mediation does not end with an agreement, it has positive results - it is possible to narrow the range of issues to be discussed and/or neutralize mutual resentment.[15] One of the advantages of mediation is that parties have the opportunity to make a creative decision.[16] They are not bound by the claims.
However, mediation is always considered confidential in contrast to the court proceedings, as court proceedings are usually held in public. In mediation, there is always a presumption of confidentiality.[17] Confidentiality is a prerequisite for successful mediation. This principle helps to create an environment where parties can freely talk about their relationship. They know that information cannot be used against them.[18] It is also important to note that two standards of confidentiality are distinguished in the mediation process: internal and external confidentiality. The meaning of each is as follows: 1. Internal confidentiality involves the mediator\u27s obligation to keep the information secretly from the other party, unless the relevant party has explicitly stated desire to disclose. 2. As for “external confidentiality”, in accordance to the mentioned standard, any information disclosed during the mediation process must be protected from third parties. The mentioned requirement applies not only to the mediator, but also to the parties or participating third parties.[19]
It should be noted that the above-mentioned advantages of mediation, which have been indicated in an incomplete form, apply equally in case of implementation of any form of mediation. In theory and practice, three main forms of mediation are distinguished - judicial, private and court – annexed mediation forms.[20] In any case, nowadays mediation is recognized as one of the fastest means of dispute resolution, which at the same time ensures saving of financial resources of legal subjects.
It should also be noted, that from 2020, which was related to the pandemic situation and its consequences, the mentioned issue - timely resolution of disputes has gained special relevance. In addition, under the threat of a spread of the coronavirus, the issue of online dispute resolution has become more relevant, because in the presence of force majeure, whether it is caused by a pandemic or another reason, further delay of court proceedings can cause significant damage to the subjects of law.
That is why, recently, online means of dispute resolution have gained special importance. The use of technology has become necessary in order to maintain existing relationships between the subjects.[21] In fact, online mediation has been recognized as a fair, effective, convenient and inexpensive mean of dispute resolution accepted in the global e-commerce market.[22]
Therefore, nowadays, online mediation is widely used in the process of resolving various types of disputes, especially in relation to property disputes. For example, a website like TaoBao offers customers a solution to resolve sales issues through online negotiation. Pages - Ebay, Paypal are also considered to be the leaders in the field of online dispute resolution.[23] It is recognized that in addition to a number of advantages of online mediation, such as their convenience and availability, its impersonal nature is also considered as an advantage.[24]
However, of course, there exist opposite opinions as well - according to skeptics, mediation societies develop mediators’ skills, that are related to direct communication. In their view, active listening, questioning skills, negotiation skills, body language or other means of non-verbal communication are considered to be critical for the success of mediation and may not be achieved in the online proceedings.[25]
In response to this, it is possible to say that online mediation involves the use of standard mediation techniques, only in virtual space.[26] However, considering its nature, online mediation can be used with success in the process of resolving business disputes and disputes between corporations. After all, transnational societies represent the leading force of economic globalization.[27] And for them, the wise use of time and financial resources is very important.
In any case, in Georgia, the institution of mediation is supported by state policy. Following the legislative support of mediation, a number of important projects have been implemented. Therefore, its successful functioning across the state, along with other means of dispute resolution, in the chain, should be evaluated as a significant issue. Therefore, it is considered important to ensure effective use of its resources in relation to any category of dispute. More significantly, to resolve the disputes which are loaded with the international private law element, which, as mentioned, increases their complex nature and parties have to additionally determine - which state’s law can be used while resolving a specific dispute. It should also be noted that in case of international private legal disputes, there is a high probability that the subjects of law may belong to different states and be in different countries physically, which further increases the costs related to litigation. Therefore, in such cases, the ability to conduct online mediation can acquire special importance. In this way, the time and financial resources of the conflict participants will be saved even more.
This approach echoes the reality that in recent years, both in Europe and globally, significant efforts have been made to develop means of non-judicial dispute resolution. Among them, online dispute resolution has been thought to have significant resources for resolving smaller disputes.[28] In addition, mediation has been recognized as a major force in the process of resolving international business disputes.[29]
About the existing regulation in Georgia
It should be noted that, on the other hand, international private law includes many legal issues in the field of private law, including: business law, family law, bankruptcy law and others. It is the structure, that the Law of Georgia “On International Private Law” has been formed, which has not undergone significant changes since its adoption, and by objective evaluation, it is possible to recommend improving a number of its articles. For example, the following legal gap is noticeable: according to Article 68, Part 5 of the mentioned law, “The issue of recognizing a foreign court decision shall be considered by the Supreme Court of Georgia”. And according to Article 73 of the same law, it is provided that “the decisions (rulings and resolutions) adopted by a court of first instance according to provisions of this Chapter shall be subject to appeal under the procedures established by law”. Obviously, the existence of such regulation is contradictory and needs to be harmonized. In particular, if only the Supreme Court of Georgia, the court of the third instance, considers the issue of recognition of a foreign court decision, the court of the first instance, obviously, cannot provide decisions that can be regulated by the mentioned law.
Taking into account the above, it is considered important to harmonize the conflicting regulations in the law of Georgia “On Private International Law”, to eliminate the existing inaccuracies.
Conclusion
The goal of the existence of the law is to protect the parties from harm caused by the conflict between them. In addition, in the modern world, the number of legal relations, which are characterized by a foreign element, is growing and, therefore, before resolving the dispute from a material and legal point of view, the law “On Private International Law” must be applied.
In addition, the perfect functioning of various forms of dispute resolution operating within the state significantly determines the stability of civil relations, ensures the realization of the interests of the subjects of law and should be considered as an expression of public interest. And after the legal regulation of mediation, it should be considered necessary, to show the importance of its use in the process of considering international private law disputes. Among them, it is desirable to focus on the possibility of using the resource of online mediation. In this direction, it is considered necessary to raise the awareness of the public so that the court shall be considered as one of the ways to resolve the dispute and not the only one. In the direction of raising public awareness, it is also important to involve legal professional societies in order to present mediation as one of the effective alternatives for resolving international disputes. On the other hand, it is considered necessary to improve the law of Georgia “On Private International Law” and eliminate the existing gaps.
Taking into account the above-mentioned recommendations, they will ensure the use of the possibility of timely resolution of existing private legal disputes, as well as the encouragement of the use of mediation throughout the state. For the subjects of law, the goal may become more visible - to trust mediation as a process, that allows realization of their best interests.
Bibliography
Normative acts:
The Civil Procedure Code of Georgia. https://www.matsne.gov.ge (In Georgian)
Law of Georgia “On Mediation”. https://www.matsne.gov.ge (In Georgian)
Law of Georgia “On Private International Law”. https://www.matsne.gov.ge (In Georgian)
Used literature:
Gabisonia Z., (2016). Georgian Private International law, Tbilisi.
Khandashvili I., (2018). Judicial and Non-Judicial Forms of Alternative Dispute Resolution on the Example of Mediation in Georgia,
Becker J., (1916). Elements of Japanese Law, International Private Law Book II: Chapter X.
Bookman P., (1931). Boston University Law Review Online, Is Private International Law International?
Burman H., (2009). Private International Law Tax, Estate and Individuals, International Lawyer (ABA).
Ehrman K., (1989). Why Business Lawyers Should Use Mediation ADR: Alternative Dispute Resolution, ABA Journal.
Hyde L., (1984). Mediation, Juvenile & Family Court Journal, Core U.S. Journals.
Hessel E., (1953). The Historic Bases of Private International Law, American Journal of Comparative Law.
Juenger F., (1994). Private International Law or International Private Law, King\u27s College Law Journal.
Juenger F., (1995). Private International Law or International Private Law, King\u27s College Law Journal.
Kallipetis M., (2014). Mediation Ethics in Europe, Dovenschmidt Quarterly.
Krivis J., (2000). Taking Mediation Online, Law Practice Quarterly.
Kovach K., (2004). Mediation Principles and Practice, third edition, “THOMSON WEST”.
Lavi D., 2016. Three is not a Crowd: Online Mediation-Arbitration in Busines to consumer Internet Disputes. U. Pa. J. Int’l L., 37(3).
Lenz C., (2021). Virtual Mediation - The New Modus? Section II: Alternative Dispute Resolution, Yearbook on International Arbitration.
Lande J., (2000). Getting the Faith: Why Business Lawyers and Executives Believe in Mediation
Harvard Negotiation Law Review.
Lisnek P., (1993). Mediation: Untangling Business Disputes through ADR Feature, Commercial Law Bulletin, p. 12
Lombardi E., (2012). Is Online Mediation the Way to Fit the Forum to the Fuss, Maastricht Journal of European and Comparative Law.
Macturk Ch., (1995). Confidentiality in Mediation: The Best Protection Has Exceptions, Student Note American Journal of Trial Advocacy.
Parish L., (2003). After the Mediation, What Feature on Alternative Dispute Resolution.
Petsche M., (2013). Mediation as the Preferred Method to Solve International Business Disputes: A Look into the Future.
Posin Q., (2004) Mediating International Business Disputes, Fordham Journal of Corporate & Financial Law.
Rigaux F., (2000). Codification of Private International Law: Pros and Cons Conflict of Laws, Comparative Law and Civil Law: A Tribute to Symeon C. Symeonides, Louisiana Law Review.
Salmond J., (1902). Territorial and Personal Law, Jurisprudence or the Theory of the Law.
Stegner M., (2017). Online Dispute Resolution: The Future of Consumer Dispute Resolution Section V: ADR Yearbook on International Arbitration.
Sudini L., (2016). Mediation in the Settlement of Business Disputes in Indonesia, Journal of Law, Policy and Globalization.
Wang G., (2009). Mediation in the Globalized Business Environment, Asia Pacific Law Review 17 Asia Pac.
Zhao Y., (2008). Rethinking the Limitations of Online Mediation, American Journal of Mediation.
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ისლამის გავლენა სასამართლო ხელისუფლების ფორმირებასა და განხორციელებაზე ისლამურ სახელმწიფოებში
No full textIn Islamic states, massive violation of human rights, sadly, is a well-known topic in the contemporary world. Much research and work has been published in this direction, which underlines the actual situation in Islamic states concerning specific rights. The novelty of the particular work is not in discussing concrete right/rights, but in analyzing Islam\u27s influence on the formation of the judiciary system and then on implementing the judiciary governance. The judiciary system is a fundament, through which the study of the problems of Islamic countries should begin. The article discusses eleven Islamic states and their judiciary systems. While working on the research, the constitutions of all of them were found, particularly the records on the judiciary. The similarities and differences in the countries under examination are separated by the method of comparative analysis. The research aims to show the distinguishing features of a narrow group, particularly in Islamic countries. These distinctive features directly impact the quality of human rights protection in specific countries. The research has shown that the religious affiliation of the population is not the only reason for the influence of Islam on the judicial system. An example is Turkey, in case of which, even though 98% of its population is a follower of Islam, in terms of human rights protection, does not share the conditions of other Islamic countries. The importance of the topic discussed in the article is pressing, as evidenced by the modern protest in the world, which began with the tragic death of a 22-year-old Iranian girl, Mahsa Amin, behind which the judicial system discussed in the article stands. To sum up, the article offers interesting findings on the problematic aspects of the Far and not so Far East.
Keywords: Islamic state, Human rights, Religion, Constitution, Judicial system, Influence
Introduction
The main goal of the law, like other fields, is people. To achieve this goal, it is necessary to perform many tasks, but the goal is one, and that is human and the protection of his/her rights and freedoms. In law, this goal is directly served by the judiciary, therefore, it can be said that the achievement of the primary goal of law in the country directly depends on the activity of the judiciary. As soon as Islamic states are mentioned, a person interested in law may associate, in addition to the undoubtedly beautiful culture of the Far East, many cases when human rights are violated. We remember such famous cases as even the stoning of Soraya or Malala and the modern tragedy of the death of 22-year-old Mahsa Amin and the events that followed. However, these seem to have become mere statistics. How, most important, natural human rights are violated not far from us due to the abundance of such cases is, unfortunately, already a statistic. The great Bernard Shaw says that the death of one person is a tragedy, and the death of more than one person is already a statistic, and the same applies to the violation of rights. The fact is, the problem remains a problem, and the search for the roots of the problem will surely lead us to the judiciary in Islamic states. Of course, the search for the root of the problem of mass violations of human rights should begin with the investigation of the psycho type and mentality of society, but this is a rather difficult mission. It is better to leave the influence of Islam on the judiciary of Islamic states as the goal of this article.
The fact that the main specificity of Islamic states is their religious views is not new. It is precisely on this basis that they are united. However, I would like to make one note here: religious dogmatics may be understood in different ways, and its rough interpretation leads to the formation of wrong ideas about a specific religion, but our current goal is not to reveal the true ideology of the Islamic faith, so we will not touch on religious topics in depth within the article. This article aims to show the influence of Islam on the judiciary in Islamic states such as Iran, Iraq, Afghanistan, Somalia, Saudi Arabia, Kuwait, Yemen, Egypt, Pakistan, Malaysia, Palestine, and Turkey. The majority of the Muslim population unites these states. Although their legislation is significantly similar, there are also differences between them. Our research serves to present and analyze these similarities and differences.
Islam as the Main Source of Legislation
The close connection with Islam in the countries mentioned above is quite obvious, but the constitutional records in which this connection can be seen are interesting. In the majority of the studied countries, Islam is declared as the state religion. However, in some of them, it is mentioned that they respect other religions, but in all cases, it is unnecessary to talk about religious secularism in these countries.
It is an interesting fact that, for example, in the Republic of Somalia, Article 17 of the Constitution guarantees the right of people to choose and follow their religion freely. However, the second sentence of the same article prohibits the promotion of any other religion except Islam.[1] 11 of the 12 countries under study have a similar approach to religion, the exception being Turkey, where although followers of the Islamic religion represent the majority of the population, Turkey prefers the principle of religious secularism, and this is reinforced both in the preamble of the Constitution and in specific articles, for example, Article 24 of the Turkish Constitution.[2] This review aims to give the reader a general idea of the legal systems of the countries concerned with religion. More specifically, reviewing such legislative records that emphasize that Islam is the primary source of legislation is interesting. This connection with Islam is a direct declaration at the constitutional level that any legal act is strictly checked considering the dogmatics of Islamic law. In such countries as Palestine (Article 5 of the Constitution),[3] Kuwait (Article 2),[4] Egypt (Article 2),[5] the Republic of Somalia (Article 50),[6] Afghanistan (Article 3),[7] Yemen (Article 3),[8] Malaysia (Article 3)[9] Islam, in particular, Sharia, is mentioned as the main source of the country\u27s legislation. Justice and equality are cited as the primary sources of legislation in Saudi Arabia,[10] which, in turn, must be consistent with Islam. According to the Iraqi[11] constitution, Islamic law is not indicated as the source of legislation, but it is declared that it is not allowed to adopt such a law against Islam. This is essentially the same as naming Islam as the source of legislation, although the connection with religion is more intense here, because the adoption of anti-Islamic legislation is presented in a negative light by the constitution. The constitution of Pakistan[12] also indicates a special connection with Islam, in which the rules and laws of the Islamic way of life are spelled out at the constitutional level; the link is even more extreme in the case of Iran. In the preamble of the Iranian constitution, it is stated in various terms that the entire constitution and Sharia constitute Islamic law based on two primary sources, the Qur\u27an and tradition.[13] The legislation fully complies with the principles of Islam. More specifically, Article 2 of the Constitution states that the Iranian state is based on the idea that there is one God to whom they are obliged and whose orders they must follow, that divine justice must be shown in the legislation. Although it is clear from the example of all ten countries how closely connected they are with Islam, it is still possible to notice the distinguishing marks of the degree of this connection outlined above. We do not find such a record in the Turkish constitution, which is obviously caused by its religious secularism. Although the article’s primary purpose is to focus on the judiciary, the reader must understand what type of states we deal with and how their connection is strengthened with Islam. Without this presentation, it will be impossible to talk about any constitutional institution, in this case, the judiciary.
Judiciary Systems
Although the above analysis has shown us that in the case of countries other than Turkey, the influence of Islam is quite considerable (in some cases significantly) on the legal world of the country, it would certainly be wrong to equate their legal institutions with each other. Therefore, at this stage, it is necessary to consider what kind of judicial systems are established in the studied countries. It should be noted as a standard feature that depending on the political ideologies and situation of the nations, military courts are very common. For example, the Palestinian judicial system consists of courts of first instance, followed by a “higher court” that combines the courts of appeal and cassation. There is a separate administrative court, which considers administrative and disciplinary issues separately (Article 102 of the Constitution).[14] There is also a Constitutional Court, whose authority is to determine the conformity of legislation with the Constitution and to adjudicate disputes before the General Courts and the Administrative Court (which court hears a particular case), as indicated by Article 103 of the Palestinian Constitution. The judicial system of Saudi Arabia is similar to this system,[15] with the difference that there is no such thing as a constitutional court, and the king is named as the highest person of the judiciary. As we can see, the judicial system is quite clearly established in Palestine, which cannot be said about Kuwait, where the chapter on the court in the constitution is limited only to general principles and does not specify what kind of judicial system the country has. Iraq has a more clearly established judicial system at the level of the Constitution than Palestine. In Article 89 of the Constitution, we find the exact names of the bodies that exercise judicial power. Their competencies are given in detail in the following articles. These bodies are the Supreme Council of Justice, the Federal Supreme Court, which combines the functions of the Constitutional Court, and the Court of Cassation. In the same article, the Department of Judicial Prosecution is allocated, which includes the Prosecutor\u27s Office. This specificity is interesting that, unlike the previously discussed countries, the Prosecutor\u27s Office is considered a part of the judicial system. Afghanistan’s case is similar to Iraq’s judicial system, although the prosecutor’s office is not considered a judicial authority here.[16] Like Iraq, the prosecutor’s office is a part of the judicial system, in the case of Egypt, where this system is detailed in the constitution. In the general court system, there is a separate court that hears only administrative appeals. In Egypt, too, we find the Constitutional Court, whose competencies are similar to the competencies of the courts of the previous countries. In the case of Somalia, there is a Supreme Court, which combines civil, criminal, and administrative courts and has the competencies of the Constitutional Court. The Constitution of Malaysia also mentions the Supreme Court, which is referred to as the country\u27s highest judicial authority. Turkey has a fairly complete judicial system, there are state security courts that consider cases related to the country\u27s territorial integrity. The highest judicial bodies are the Supreme Constitutional Court, the Court of Appeal, and the State Council, which is essentially a court of cassation. There is a separate Supreme Court of Auditors and a dispute settlement council, which deals with the disputes between courts on jurisdictions.[17][18]
This discussion shows that the court system in these countries is similar, but the serious differences we have already discussed are also apparent. In the end, it is important that the examples of the discussed countries have established judicial systems, which are more or less written at the level of the constitution, and this conclusion is necessary to approach the main goal of the study in more depth and to discuss the influence of Islam on these judicial systems.
Sharia Court - Pakistan
Although we have reviewed the judicial systems of specific countries in a general way using the method of comparative analysis above, it is necessary to single out the case of Pakistan. According to the constitution\u27s text, there is a court of first instance and a highest instance, the exclusive competence of the highest instance includes the consideration of disputes between administrative and federal bodies. The main reason for the separate review of Pakistan\u27s judicial system is the Federal Sharia Court, which combines the competencies of the Constitutional Court. The very name of the court suggests strict religious control. The court\u27s primary goal is to determine the compliance of legislative acts with Islamic principles and traditions, Sharia. It has the power to declare void any act he deems inconsistent with Islam. The Sharia Court also has exclusive jurisdiction to hear special criminal cases. It should be noted that Pakistani society often protests the existence of this court, although the Sharia court remains the most crucial constitutional body exercising judicial power.[19]
Impact on Court Formation
We have already reviewed what judicial authorities exist in the studied countries, and we have also emphasized how closely the legislation of each country depends on Islam. As for the influence of Islam directly on the judicial systems of countries, it is logical that this influence will be directly proportional to the impact of Islam on the legislation, which we have already touched on in general. In its essence, the religion of Islam incorporates the functions of positive law, as evidenced by the existence of such an act as Sharia. Sharia outlines the basic principles of Islam, specific crimes, and their appropriate sanctions. For example, theft is punishable by amputation of the right hand. The given example is relatively humane in light of other reservations contained in the Sharia. However, an extensive discussion on Islamic law will not be relevant at this stage.
In the case of some countries, Islam has a direct influence on the formation of the judicial system itself, an example of this is even Pakistan mentioned above, where the highest federal court is known as the Sharia Court, which accommodates the competence of the Constitutional Court. However, it determines the conformity of legislation with Islamic law.
At the stage of discussing the influence of Islam on the formation of the judiciary, we should also mention the case of Iraq. In particular, we are talking about Article 92 of the Iraqi Constitution, which refers to the Federal Supreme Court. As mentioned above, this court combines the competencies of the Constitutional Court. The court\u27s composition is significant, according to paragraph 2 of Article 92. The court consists of 5 judges, legal scholar-practitioners, and Islamic religious experts. In the constitution itself, there is a reference to the law that will regulate their number and the method of election. As we can see, the strong influence of Islam is noticeable not only at the implementation stage but also at the formation of judicial power in Iraq. Chapter 7 of the Constitution of Iran deals with the judiciary. There is no direct reference to the manner of formation of the court, although there is a separate Supreme Court of Iran, the way of formation of which is regulated by a separate law.[20] As in Iraq, in the composition of the court, here too, we find specialists of the Islamic religion, whose competence is to bring judicial analysis and decisions into conformity with the Sharia. There is also an interesting entry in the Palestinian constitution, namely Article 101, which states that Sharia regulates specific issues and it belongs to religious courts. The list of matters to be adjudicated by such courts is not given in the constitution and should probably be found in the specific normative acts of Palestine.[21] Similar issues may apply to inheritance law because in Islamic states, for example, in Kuwait, inheritance law is fully regulated by Islamic law i.e. Sharia (Article 18 of the Kuwaiti Constitution).[22]
In such countries as, for example, Egypt, Malaysia, and Somalia, the direct influence of Islam at the level of the constitution is not observed at the stage of the formation of the judiciary. The case of Afghanistan, which differs from the countries mentioned above, deserves attention. Article 118 of the Constitution lays down the qualifications and requirements for Supreme Court judges. For example, things like a good reputation and Afghan citizenship. In addition to such criteria, the Afghan constitution requires that a judge have a higher education in Islamic law. This case is quite specific because, unlike Iraq, the need for an Islamic expert in the judiciary is not directly established, although this constitutional reservation in Afghanistan implies that all judges of the Supreme Court must have in-depth knowledge of Islamic law.[23] This has a more significant impact on the formation of the judiciary than in the case of Iraq.
The case of Saudi Arabia is also specific, where the supreme judicial authority is the king, who is accountable to Allah and whose decisions must be in accordance with Islamic law. As for Turkey, it is not surprising that there is no entry in the constitution indicating any sign of its judicial system being influenced by the Islamic religion. This is not surprising, and the reasoning given in the previous chapters also shows this.[24]
Impact on the Exercise of Judicial Power
The influence on judicial power is understood as the influence on the formation of the court and the implementation of justice by the court. Above, we have already discussed the impact on the formation stage. Therefore, there may be a feeling that in such countries as, for example, Malaysia or Egypt, where we do not see a record at the level of the constitution, which does not directly emphasize Islamic requirements during the formation of the judiciary, there is no influence of Islam. Such a representation does not correspond to reality because in most countries under consideration, we must not forget that the direct, main source of legislation is Sharia. Furthermore, in the constitutions, we find entries that do not accentuate directly to judicial formation, although it is clear that Islam has a direct influence on the exercise of judicial power. First, I will review countries such as Egypt, Malaysia, and Somalia, because they are united by the fact that there is no direct influence of Islam at the stage of the formation of their courts. The case of Egypt is quite simple. In particular, there are no reservations about Islam in the head of the judiciary. However, court decisions must be in accordance with the law, and according to the constitution, the primary source of law is Islamic law. It should be noted here that, unlike other countries, the Egyptian constitution gives special advantages to Judaism and Christianity. These advantages are constitutionally spelled out in Article 3, which states that the source of legislation may also be the laws of these two religions. Regarding Somalia, it is worth noting an interesting note, namely Article 98 of the Constitution, which establishes the constitutionality of norms. Here, not only the compliance of specific norms with the constitution is implied, but also a direct reference to Islamic principles. Therefore, it is clear that the court, which establishes the constitutionality of the norm, is thoroughly guided by Islamic law. There is a similar arrangement in Kuwait and Iraq, where the source of legislation is Islamic law. The head of the Malaysian state is the Yang di-Pertuan Agong, i.e. king, who, like the king of Saudi Arabia, is responsible to God, Allah. The judicial power is subordinate to him. Therefore justice is in his hands, so the conclusion that the influence of Islam on the implementation of the judicial authority in this country is the greatest does not require special argumentation.[25]
On the example of the discussed countries, I will summarize once again that although the direct influence on the formation method is not felt in the given countries, it is a fact that Islam has a serious impact on the court. In fact, the state-level mechanism of human rights protection is fully adapted to the teachings of Islam. In the case of Palestine, we do not find a separate provision in the constitution, although it is enough to demonstrate the influence of Islam that the existence of church courts, which Sharia guides, is constitutionally established there.
Also interesting is the case of Afghanistan, where Article 119 of the Constitution provides for the oath taken by the judge of the Constitutional Court. The words of the oath are noteworthy when the judge swears before God that he will administer justice by following the laws of holy Islam.[26] There may be an opinion that taking an oath is a rather symbolic process that characterizes even the judges of secular states. However, in this case, the text of the oath is worth noting, in which an appeal is made to the laws of Islam. Therefore, it must be said that Islam greatly influences the implementation of judicial power in Afghanistan.
Such a direct and immediate influence is less noticeable in the Yemeni constitution, although this country also belongs to the number of countries where the source of legislation is the Sharia, so the court decision will not be inconsistent w
PLEA BARGAIN – AIM, IMPORTANCE AND PROBLEMATIC ASPECTS IN THE REALITY OF THE US, GERMANY AND GEORGIA
Get PDFThe parties come to a plea bargain, based on which the defendant receives a reduced punishment than would be appropriate in a formal trial. Based on its core, it is obvious that the given system largely favors the accused, but after a thorough investigation, we can see that several significant concerns need to be addressed right now. The purpose of the paper that is being provided is to examine the plea bargain, its growth over time, and its status in three distinct states. The writers of the article examine the realities in Germany, Georgia, and the United States of America, which will be a fascinating depiction of the present situation. The study of the facts provided will be highly fascinating and varied in this regard because the United States of America is a country of Anglo-American law, and Germany and Georgia are countries of continental European law. The article will examine not only the legislative history of the de- scribed issue in the given states but also genuine situations, using which the problematic elements of this institution in all three nations will be distinctly highlighted. As a conclusion, the authors\u27 viewpoint on the current models in each of the three states will be stated.
Keywords: The US, Germany, Georgia, Plea Bargain, Court
Introduction
Criminal law has a long history of using plea bargains. Depending on the laws of various countries worldwide, its purpose and meaning might vary. As you are aware, there are nations with continental European law and nations with Anglo-American law. Their respective legal bases are vastly dissimilar. Regarding the countries of continental European law, the situation is different here because we have written law that is provided in codified form, unlike Anglo-American law, which is based on precedents, which eventually establishes the legal foundation on which the court acts.
Due to its unique qualities around the globe, the plea bargain system is fascinating. It goes without saying that each state has its unique legal system. Based on the work, the key elements of plea bargains, legal realities, and problems will be explored using the examples of the US, Germany, and Georgia.
The constitution of America serves as the cornerstone of this state. The dignity of the constitution is its fundamental component, and the 27 additional articles work in concert to produce an intriguing reality. The US Constitution does not include plea bargains as a right, but it should also be emphasized that they do exist in the American criminal court system. Based on the Supreme Court\u27s broad view, it has been determined that plea bargains are necessary in America. Considering the paper\u27s objectives, we will review the existing procedures, history, and court practices in America connected to plea bargains. We\u27ll next concentrate on the benefits and drawbacks of this institution before drawing a judgment concerning its potential demise.
The German criminal proceeding corresponds to the model of a triadic value conflict: the victim\u27s need for retribution is replaced by society\u27s need for deterrent action, which is transformed into the state\u27s demand for punishment, with the judge conditioned to act as an impartial third party.[1] As a result of the different legal concepts and traditions, the establishment of plea bargains in German criminal proceedings turned out to be more controversial and problematic. The core of the problem was that establishing the American model of plea bargains meant that the traditional German structure of value-conflict needed to be transformed into interest-based negotiations between defendants and prosecutors, where the judge\u27s role and function would be limited. For the reasons mentioned above, several judicial decisions set clear limitations on plea bargains in Germany, which differed its regulation from the traditional American model. Within this article, the general principles of German criminal law; the arguments of critics and legal scholars against the establishment of plea bargains in German criminal law practice; the necessity of significant changes, and the first steps towards changes in the German criminal justice system; disadvantages of the current regulation and the possible recommendations for its improvement, will be discussed and analyzed.
The article\u27s purpose is to discuss one of the most important issues regulated by the Criminal Procedure Code - the plea bargain. The article "Plea bargain - aim, importance, and problematic aspects in the reality of the US, Germany, and Georgia" discusses the problematic issues related to the Georgian plea bargain. The changes made after the introduction of the plea bargain into the legislative space and the extent to which it limits the judge\u27s role in considering the criminal case. At the end of the article, a position will be presented as a conclusion regarding what legislative changes should be made to make the institution of plea bargain more effective and fairer. Georgian criminal procedural legislation has recognized the institution of plea bargain since 2004.[2]
Kalenike Uridia
Plea Bargain in the US
1.1 The Meaning of Plea Bargain
In the American judicial system, plea bargains are frequent, making up to 90% of all criminal cases. However, plea bargains are not permitted in many nations because they are seen as unethical and immoral. A bargain between the prosecution and the defendant in a criminal case, known as a plea bargain, often involves the defendant admitting guilt in exchange for a less punishment or charge.[3] They don\u27t always represent a traditional sense of "justice" and are frequently only seen as a technique for developing a "mutual awareness" of the case\u27s advantages and disadvantages. The question of who is best served by these bargains does arise, even if courts, in theory, are willing to let the parties involved resolve their conflicts by themselves.[4] A plea bargain is a contract between the prosecution and the defendant; if either party doesn\u27t uphold their half of the bargain, the most likely option is to go to court to enforce the bargain. Usually, a lower charge is offered in exchange for something the defendant must undertake. A prosecutor has the right to cancel the offer if the defendant doesn\u27t keep up half of the bargain.[5] There are three main varieties of Plea bargain recognized in the U.S:[6]
Charge Bargaining: The most typical type of plea bargaining, in which the defendant agrees to admit guilt to a lower charge in exchange for the dismissal of more serious charges. A classic illustration would be to admit manslaughter as opposed to murder;
Sentence bargaining: is when a defendant agrees to plead guilty to the charged offense in exchange for a less severe sentence. It is far less prevalent and strictly regulated than charge bargaining. Most often, a court must consider this, and many countries explicitly forbid it;
Fact bargaining: The least frequent type of plea bargain involves a defendant agreeing to concede to some facts to block the admission of other facts into evidence. Most lawyers oppose using fact bargains, and many courts do not permit them. [7]
1.2 Principal Causes and Influencing Factors for Using a Plea Bargain
The primary justifications include the following: Courts are congested; if they were to continue operating, they would be overloaded; prosecutors\u27 workloads are likewise overcrowded, fewer trials allow them to focus their efforts on the most severe matters, and defendants save time and money by skipping the necessity to appear at trial. These main arguments benefit the court, the prosecutor, and the defendant in their respective roles, but they don\u27t automatically benefit the public. The plea-bargaining system has been openly criticized by many in the legal community for this reason and other moral, ethical, and constitutional ones.[8] As an illustration, the Alaska Attorney General outright prohibited plea bargaining in 1975, and other states and towns have followed suit. In 1978 research on the impact of Alaska\u27s ban on plea bargaining, the author concluded that being unable to rely on plea bargaining strengthened accountability at every stage of the legal system and prevented the court system from being overburdened. The research concludes that plea bargaining was unnecessary to effectively run Alaska\u27s criminal justice system.[9]
Finally, research in other areas, such as "Prisoner\u27s Dilemma" studies, has shown that suspects have every motivation to accept arrangements that don\u27t represent their guilt or innocence, either out of fear or to shift the responsibility to someone else. Despite these worries, plea bargains remain a significant part of the American judicial system.[10]
1.3 How Plea Bargains Function in the US
The U.S. Supreme Court has deemed plea bargaining not only legal and constitutional but also "a fundamental component of the administration of justice and should thus be promoted." When handled properly, the court explained that plea bargains might be advantageous to all parties. The defendant obtains a rapid resolution of his case, the opportunity to admit guilt and a head start on achieving any possibilities for rehabilitation. He also avoids the prolonged fears and uncertainties of a trial. Prosecutors and judges protect precious and limited resources. The public is shielded from dangers presented by criminal suspects free on bail while their cases are being processed.[11] The right to a jury trial is not unlawfully restricted by the mere chance that a jury trial may result in a worse punishment than a plea bargain. It is also legal for a defendant to plead guilty despite maintaining his innocence if there is a factual foundation for the plea and the defendant wants to avoid the possibility of receiving a harsher sentence. The defendant and the prosecution are not guaranteed the right to have a guilty plea accepted, and the defendant cannot compel the prosecution to enter a plea bargain.[12]
According to the constitution, a guilty plea must be offered willingly, with knowledge of the charges against the defendant and their potential implications. The court must (1) conduct a thorough investigation of the defendant in open court on the record and (2) determine that the defendant has made a voluntary, knowing, and intelligent waiver of these rights before a plea can be accepted because significant constitutional rights are being waived, including the right to a jury trial, the right to confront witnesses, the privilege against self-incrimination, and the right to be convicted only by proof beyond a reasonable doubt. For nolo contendere pleas and specific admissions to sufficient facts equal to guilty pleas in their finality, explicit inquiries and waivers are also necessary.[13]
The "critical stage" of a guilty plea necessitates counsel or a legally binding renunciation of counsel. If the defendant enters her guilty plea without legal representation, she has the right to change her mind before the sentence. A guilty plea does not surrender the right to improper aid of counsel, a typical basis for applications to withdraw the plea.[14]
The court must examine the defendant, make specific findings, and inform the defendant of the potential consequences of entering a plea. The defendant is put under oath in open court during the colloquy section of the hearing and is asked a series of questions.
According to relevant case law, the judge must:
Find out if there are any bargains that are dependent on the plea from the defendant or their attorney. The nature of any bargain must also be disclosed to the court.
Let the defendant know that he has the option to change his plea if the court decides to impose a harsher penalty.
Inform the defendant that his plea waives trial rights.
Inform the offender of potential criminal and/or immigration repercussions.
Make sure the defendant is aware of the components of each charge to which he is entering a plea of guilty.
Make inquiry about voluntariness and come to conclusions.
Accept or reject plea.
1.4 Alford Plea VS. The "Nolo Contendere" (No Contest) Plea
In an Alford Plea, the accused admits guilt but maintains his innocence. A defendant who enters a nolo contendere plea accepts punishment (the court\u27s sentence), but they do not acknowledge guilt. In both cases, the defendant is found guilty.[15]
Alford received a 30-year jail term from the court. An appeals court overturned the conviction, but the U.S. Supreme Court overturned it in 1970. The Supreme Court rejected Alford\u27s contention that his plea was forced because he wanted to avoid the death penalty and thus was "the consequence of fear and coercion." Because Alford and his counsel wisely determined that accepting the plea offer was in his best interests, given on the significant incriminating evidence against him, the court determined that Alford\u27s guilty plea was voluntary.[16]
The Alford plea is not accepted in all jurisdictions, and in those that do, the consequences differ. But in general, even if the genuine offender hasn\u27t been found and apprehended, a case can be closed with a conviction after an Alford plea. Unfortunately, this may imply that the actual criminal is still free and able to commit more crimes without fear of being tracked down. The weight of a conviction staying on their record and the impossibility of pursuing financial damages for the erroneous conviction due to their admission of guilt are the effects of an Alford plea on people exonerated but facing a retrial.[17] The Alford plea has quickly emerged as the prosecution\u27s first choice due to the sharp rise in wrongful convictions for wrongful accusations. The case is concluded with a conviction, and the defendant is also barred from suing the state or collecting statutorily permitted compensation for the incorrect conviction.[18]
How an innocent person may consent to a plea that ends in a conviction that will last their whole lives may be a mystery to those who have never had to consider the possibility of spending decades or their entire lives behind bars. But after spending years, even decades, behind bars, the overwhelming yearning is just to be free. This is particularly true if the defendant spent a significant amount of time on death row in solitary confinement. It is reasonable that many who have been exonerated have little trust in the judicial system after having been found guilty of crimes they did not commit. Therefore, the decision is simple when given the option of freedom while admitting guilt or a new trial and going back to jail.[19]
1.5 Benefits and Drawbacks of Plea Bargaining
Although some Americans believe that the practice of plea-bargaining results in offenders receiving lower sentences than they should, the system has several advantages for both the accused and the judicial system. There are benefits and drawbacks for the prosecution, the defendant, the victims, and society.
Plea bargaining has the main benefit of accelerating the legal system\u27s procedures. In many cases, a criminal trial will last many days. A few may require weeks. For 135 days, the OJ Simpson murder trial for Ronald Goldman and Nicole Brown Simpson was broadcast on television. This can be avoided with a plea bargain so that the judge can address punishment right away. The main drawback of plea negotiations is that they might still result in the imprisonment of innocent persons. For instance, California voters enacted Proposition 8 in 1982 to restrict the times when plea bargaining may take place to address this problem and prevent innocent individuals from feeling pressured to risk going to trial.[20]
Based on the discussion, we can conclude that the advantages of a plea bargain are:
It eliminates uncertainty in the judicial system.
It gives a convincing certainty.
It could work well as a negotiation tactic.
It gives the community access to more resources.
It lowers the number of inmates in local prisons.
Along with the advantages, the named mechanism also has disadvantages such as:
It eliminates the option of a jury trial.
It could result in poor investigative techniques.
For the innocent, a criminal record is still created.
A plea bargain is not binding on judges.
Plea bargains take away the possibility of an appeal.
It offers the guilty soft justice.
1.6 The Divergent Views on whether to Outlaw Plea Bargains in the US
Plea bargaining is a contentious aspect of the legal system. Plea bargaining opponents make claims about rights, justice, and appropriate punishment.[21]
Plea bargaining is unjust because of the rights that defendants give up, such as the right to a jury trial.
Plea bargaining enables offenders to thwart the judicial system, which lowers public confidence in the criminal justice system.
Giving offenders who enter plea deals lesser sentences leads to unfair punishments when the punishment is overly moderate in comparison to the seriousness of the offense.
Plea negotiations increase the likelihood that innocent persons would confess to crimes they didn\u27t commit.
Proponents emphasize plea bargaining\u27s advantages in real life.[22]
Plea negotiating enables criminal justice professionals to customize sanctions and lessen their severity.
Plea bargaining is a necessary administrative practice because without it, the judicial system would become clogged with cases, and the courts would be overrun.
Plea negotiations spare the prosecution, the judiciary, and the prisoner the expense of a trial.
Plea bargaining has many real-world advantages; thus, it is unlikely to be abolished very soon. According to the current bargain, any injustice and unfairness that plea bargaining may bring about in the legal system are at least balanced out by the advantages it provides for both the state and the defendant.
Elene Landia
Plea Bargains in Germany
2.1 Argumentation of Critics and Legal Scholars Against the Establishment of Plea Bargains in German Criminal Law
The legislative regulation of plea bargaining in German criminal law has not had as long a history as in American criminal law. It was not until 2009 that Germany\u27s constitutional court upheld a law that allowed plea bargains in criminal trials. In 2013 the German constitutional court affirmed that plea bargains in criminal court cases are legal under the German constitution.[23]
For many years German legal scholars and commentators considered that plea bargaining could not become a part of German criminal law. They were motivated by the significant difference between the German and American criminal justice systems. In the American criminal justice system, criminal proceedings are adversarial. It means the defense counsel and the prosecutor have almost equal adversarial postures. The judge is presented as a neutral observer with a limited scope of authority. By contrast, the German trial is led by a judge who has quite an active role in the process. The judge searches out the truth to determine which crime was committed and the most appropriate sentence for this punishment. Many basic principles relating to criminal prosecution go back even further in German legal history — they\u27re outgrowths of the German notion of the "Rechtsstaat", translated as "the rule of law". The "Rechtsstaat" requires that an unbiased judge probe all the facts of the case in a public proceeding in which all parties have a right to be heard, with the ultimate purpose of discovering the fundamental historical truth of what happened.[24] It is important to discuss what dangers the opponents of establishing plea bargains in German practice might have seen.
As plea bargaining is an out-court negotiation process, a well-established principle of public trial gets violated. As a result, society may lose their respect and confidence in criminal justice proceedings.
Society may cast doubts on "Fair-trial" guarantees, as defendants are giving up some of their constitutional rights, such as the right to be presented and to participate in proceedings, the right to a jury trial, the privilege against self-incrimination, the right to confront witnesses, the right to be convicted only by proof beyond a reasonable doubt, etc;
Even though the primary advantage of plea bargaining is to speed up the processes of the justice system and make courts less overcrowded, it may lead to poor investigation procedures. As a result, an innocent defendant may also plead guilty and in some cases, the truth of what happened may not ever completely be known.
Moreover, criminal statistics will not be fully consistent with reality as guilty pleas count as convictions although there was no trial.
Another problematic issue is that there is a presumption of innocence and a key principle of "In dubio pro reo" (In doubt for the accused) established in German criminal justice proceedings. It means that when in doubt, the judge must rule in favor of the accused. By establishing plea bargaining in German criminal law, this principle becomes questionable, because there is a danger that while pleading guilty, the defendant is providing evidence against himself.
The impartiality of judges could also be problematic. As defendants are pleading guilty voluntarily, judges may become biased against them.
Finally, it may also violate the principle of legality, because there is a danger that the state may forfeit its indispensable claim to be the sole legitimate punishing
THE CLASH OF THEORIES: SEMIOTIC DEMOCRACY AND PERSONALITY THEORY IN INTELLECTUAL PROPERTY LAW
Get PDFThis article discusses the two justifications that are commonly used in intellectual property law: the semiotic democracy and the traditional personality theory of intellectual property. Semiotic democracy emphasizes the right to distribute and access information and the democratization of institutions, practices, speech, dress, mannerisms, etc., while the personality theory of intellectual property emphasizes the development of the personality and the protection of the creator\u27s dignity and personhood. However, this paper highlights some objections to the personality theory, including the unclear moral claim of creators to their feelings, character traits, and experiences and that intellectual property creations may not embody more of a creator\u27s personality than another object. De- spite these objections, the personality theory of intellectual property rights is important for the protection of the creators\u27 reputation and their economic interests. Therefore, policymakers must strive to protect these rights to the greatest extent possible.
Keywords: Intellectual property law, Semiotic democracy, Personality theory, Moral claims, Self-actualization, Human flourishing, Rights of creators, Consumer empowerment, Cultural commons
Introduction
Intellectual property law is a complex and multifaceted field that encompasses various justifications and considerations. Two prominent justifications for intellectual property rights are the concept of semiotic democracy and the traditional personality theory of intellectual property. While both theories focus on moral considerations, their perspectives on who benefits from intellectual property differ. Semiotic democracy emphasizes the freedom of expression and rights of consumers, while personality theory focuses on the rights of creators to profit from their creations and protect their reputations. This article provides an overview of both theories, examining their strengths, weaknesses, and implications for intellectual property law, and explores the contrasting justifications of intellectual property rights and their implications for policymakers.
1. SEMIOTIC DEMOCRACY AND THE INTERSECTION OF INTELLECTUAL PROPERTY RIGHTS
1.1 Semiotic Democracy vs. Traditional Notions of Intellectual Property
In the field of intellectual property law, there are many important considerations and justifications. One of the most modern is the concept of a semiotic democracy, which stands in contrast to traditional notions and justifications for intellectual property law, including the personality theory expounded by 19th Century German philosopher Georg Hegel. However, semiotic democracy does some features in common with these justifications along with the contrasts and differences. Both justifications are concerned with morality and the rights of the creators and the general public, but their focus is on different aspects of the debate over intellectual property rights.
The concept of Semiotic democracy in intellectual property law means that audiences freely and widely engage in the use of cultural symbols in response to the forces of media and give certain cultural symbols different meanings from the ones intended by their creators.[1] Also within the field of intellectual property is the so-called “personality” theory of intellectual property, which states that individuals have moral claims to their own talents, feelings, character traits, and experiences, and this control is essential for self-actualization.[2] In relation to intellectual law, this means that the external actualization of the human will require property, in this case, the property right of the owner to the relevant material, and thus claims to control feelings, experiences, and character traits may be expanded to intangible works.[3] In some areas, the two concepts overlap and agree, and in others, the two justifications diverge and disagree. In other words, they differ in some features and share others.
1.2 The Origins and Implications of Semiotic Democracy
Media studies professor John Fiske introduced the concept of a semiotic democracy, which refers to the unrestricted participation of audiences in utilizing cultural symbols.[4] This concept was groundbreaking in that it allowed audiences to ascribe meanings to cultural symbols that deviated from those intended by their creators, thus granting power to consumers rather than producers.[5] Thus, a sort of "cultural commons" emerged, wherein a communal sphere of cultural information was accessible for the public to remix, exchange, and connect.[6] This concept subverted the traditional view of intellectual property as belonging primarily to the creator because it gave the audience greater power in attaching meaning and different interpretations to intellectual property and allowing individuals to become both producers and creators. [7] In addition, it subverted the notion of exclusive ownership, where authors may dictate a great deal of control over an original image or text.[8]
1.3 Subverting Traditional Concepts of Intellectual Property
Semiotic democracy is a subversion of traditional concepts of intellectual property, such as trademarks, copyrights, etc., because trademarks consist of a trademarked concept adopted by a manufacturer or merchant to identify their goods and distinguish them from others, which allows the owner to use the mark/symbol and exclude others from doing so,[9] and copyright is the protection of original works of authorship fixed in any tangible medium of expression.[10] The work copyrighted must be that of the author himself or herself.[11] In addition, patents consist of the ownership by an inventor of processes, machines, articles of manufacture, or compositions of matter.[12]
Semiotic democracy upends the traditional notion that tangible and intangible items are solely the property of their creators, inventors, or merchants by granting consumers greater power. Nevertheless, the proliferation of corporate sponsorship and branding in both public and private realms has enabled corporations to maintain their symbols and images, leading to a blurring of the distinction between real and intellectual property.[13] This notion has taken root thanks to the digital revolution, or the proliferation of technologies such as television and the internet that facilitate the transmission of copyrighted works and ideas, which allows for the greater speech by consumers and greater freedom to use and interpret copyrighted works.[14] The digital revolution has aided the dissemination of copyrighted works and ideas by making it cheap and easy to copy and distribute information.[15] An example of this can be seen in the music industry, where copyrighted works can be freely remixed and distributed without regard to the intellectual property rights of the original artists.[16] The users are, in effect, creating their own product from the original product created by the producers, so in effect, anybody can now become a producer of original content.[17]
According to some views, conventional concepts of property rights have inhibited artistic expression by causing artists and activists to refrain from fully expressing themselves out of concern that they may face infringement lawsuits.[18] In response, semiotic democracy allows for the “democratization” of institutions, practices, speech, dress, mannerisms, etc., allowing ordinary people to fashion their own responses to cultural forces and allowing the audience to respond to an author by using the same channels and symbols.[19] The main focus of the notion of semiotic democracy is the concern over the right to distribute and access information, with the digital revolution creating greater opportunities for consumers to do so and potentially creating conflict with the property rights of creators.[20] For example, semiotic democracy has led to artistic parodies of many trademarked company logos and other intellectual property.[21] Another example is the rise of things like citizen journalism, blogging, and mashups made on platforms such as YouTube and Flickr, aided by the increased prominence of the internet in disseminating cultural information and copyrighted works.[22]
2. PERSONALITY THEORY AND INTELLECTUAL PROPERTY CONTROL
2.1 Defending Intellectual Property with Hegelian Philosophy
At the other end of the spectrum is the traditional justification for intellectual property rights of “personality theory”, which was argued by thinkers such as the German theorist Georg Hegel, who argued that the external actualization of the human will require property.[23] In this justification, individuals have moral claims to their own talents, feelings, character traits, and experiences.[24] Therefore, by controlling and manipulating tangible and intangible objects through intellectual property rights such as copyrights, patents, and trademarks, producers obtain a measure of freedom by making there will take form in the world.[25] This theory states that the personality of everyone builds itself in work and creation, and thus the development of the personality is inherent to the property rights that we have.[26] In this way, according to Hegel, intellectual property rights permit the development of the personality and protect it as well, which extends to the material things developed by the person.[27] Hegel states that because intellectual works are an extension of the creator’s personality, the creator deserves to have the right to control these works in order to preserve their dignity and personhood.[28] Therefore, granting creators property rights over their creations is part of their essential autonomy as human beings.[29]
2.2 Limitations of Personality Theory in Justifying IP Rights
However, there are some serious objections to the personality theory justification for intellectual property rights. For example, it is unclear whether or not people own their feelings, character traits, and experiences, so the moral claim of a person to these things may not, in fact, exist.[30] In addition, it does not necessarily follow that these claims are expanded when people expand moral claims to their personality through tangible and intangible works, so the personality theory may not justify anything more than usage rights or prohibitions on altering the person’s works.[31] The personality is neither linked nor affected by the outcome of the creation because it does not constitute the human person by itself, and the work itself is independent of the creator and dependent upon whether the public decides to attach importance to it.[32] The personality argument does not account for the fact that intellectual property creations may not embody more of a creator’s personality than another object, and intellectual property creations often do not embody any personality from their creators.[33] This justification for intellectual property rights also does not take into account social recognition, which does not necessarily come from the recognition of property rights, but instead may come from processes that do not provide their creators with any compensation.[34] In addition, it can be said that the personality theory prioritizes the interests of the original creators at the expense of other uses or expressions of the protected works.[35] The personality theory has also been criticized as only being suitable for artistic and creative expressions protected under copyrights rather than technological products, which are invented to fulfil specific needs and are unrelated to the inventor’s personality.[36]
2.3 Personality-Based IP: Protecting Creativity & Reputation
However, a case can be made that personality-based theories of intellectual property rights can help protect a creator\u27s reputation and protect the creator himself/herself from unwarranted economic damage.[37] In this way, intellectual property rights help creators to have a measure of control over the risks they take in presenting their work to the public.[38] To this effect, Hegel\u27s Philosophy of Rights has been used to develop a system for safeguarding intellectual property rights, which includes the following principles: (1) providing more extensive legal protection to highly expressive intellectual creations than to those with less expressiveness; (2) granting substantial legal protection to a creator\u27s "persona," despite its not being the result of labour; and (3) allowing authors and inventors to earn recognition, esteem, admiration, and compensation by selling or distributing copies of their work, while also protecting them from the misappropriation or defacement of their work.[39] Thus, intellectual property rights are crucial for the satisfaction of some basic human needs and therefore policymakers must strive to protect these rights to the greatest extent possible.[40] In this way, the personality theory of intellectual property rights helps to protect the essential right of creators to protect their works, which are an expression of their personality and will, and thus create social and economic conditions conducive to intellectual activity and human flourishing.[41]
3. SEMIOTIC DEMOCRACY VS. PERSONALITY THEORY IN INTELLECTUAL PROPERTY
Semiotic democracy and the personality theory of intellectual property have one feature in common, namely, the focus on moral considerations. Semiotic democracy focuses on the moral considerations of empowering the consumer and enabling the freedom of expression,[42] and the main goal of this concept is to expand the marketplace of ideas.[43] This is made easy by the fact that the digital revolution has made it possible for content to cross-cultural and geographic borders, allowing consumers to do what only large commercial enterprises previously could.[44] Semiotic democracy allows the consumers to reshape cultural perceptions about the meaning of things or messages and to freely build on what others have before them.[45] In this way, this notion gives consumers greater freedom in shaping their culture and exercising their freedom of expression.[46] For example, the digital revolution has given consumers greater power to alter existing content and produce something new.[47]
3.1 Four Pillars of Symbolic Democracy in Copyright Law
Generally, there are four main rights that semiotic democracy has outlined: (1) the entitlement to publish, distribute, and access an audience; (2) the entitlement to interact with others and exchange ideas, including the right to impact and be impacted, transmit culture, and absorb it; (3) the entitlement to draw from preexisting cultural materials, combining, innovating, annotating, and subsequently sharing the outcomes with others; and (4) the entitlement to engage in and create culture, and therefore the entitlement to contribute to the development of the cultural and communicative powers that shape the self.[48] These outlined rights illustrate the concern that semiotic democracy has for the freedom of expression of consumers as well as their freedom of expression. In this way, the justification of semiotic democracy focuses on the moral rights of the consumers to utilize and interpret copyrighted works in the way that they choose, regardless of whether or not the intellectual property rights of the creator are impacted.
3.2 Intellectual Property as Moral Rights: Justifying Protection
By contrast, the traditional personality theory of intellectual property focuses on the moral considerations of protecting the sciences and actively promoting them, therefore benefiting society by promoting progress and social utility.[49] This was the main concept and justification behind Hegel’s personality-based justification of intellectual property.[50] It is for this reason that many corporations are attempting to shut down or limit the participation of consumers that semiotic democracy allows because it interferes with their economic interests.[51] In addition, intellectual property rights constitute a necessary part of the individual’s personality, which can only be adequately expressed in an ethical community.[52] In this way, intellectual property rights are considered to be moral rights in that they facilitate the achievement of each individual’s personality within this ethical community, which is a crucial part of the justification for laws protecting copyright and patent protection.[53] Therefore, since the creator’s work is considered to be a key part of his or her personality, infringement is therefore considered to be a violation of his or her moral right to personality development.[54]
3.3 Semiotic Democracy vs. Personality Theory Clash
The issue of who benefits from intellectual property distinguishes semiotic democracy from personality theory. Semiotic democracy emphasizes the advantages to the consumer resulting from the challenge to conventional notions of intellectual property, whereas personality theory prioritizes the benefit conferred on creators by preserving the integrity of their creations. While traditional advertising seeks to enhance the economic value of the creator, semiotic democracy strives for the opposite outcome by allowing consumers to interpret the branded product in their own ways, even if the brand\u27s image and philosophy remain constant in the consumer\u27s interpretation.[55] Personality theory, in particular, focuses on private property as an abstract right related to needs and freedom, in that people need to have control of resources in order to satisfy their physical needs and develop their own individuality and freedom.[56] Hegel stressed that both freedom and personality must be translated into the external objective world through the ownership of private property because the individual who owns an object may liberate himself or herself from any particular need and embody his or her own free will and personality into that object.[57] Thus, denial of the intellectual property rights of a creator results in their inability to gain recognition as persons in the community, necessitating the intervention of the state to protect these rights.[58]
Semiotic democracy, by contrast, is concerned with democratizing the impact of intellectual property rights by giving consumers more power relating to their ability to interpret copyrighted and trademarked works. As an example, the democratization of the marketplace caused by the digital revolution has caused an uptick in digital piracy, an act that is symbolic of the newfound power of consumers at the expense of creators.[59] Semiotic democracy places consumers and producers on a level playing field,[60] while traditional notions of intellectual property, such as personality theory, focus primarily on the welfare of the creator without any regard for the welfare of the consumers.[61]
Semiotic democracy highlights the tension between freedom of expression and intellectual property rights, as the digital revolution\u27s democratization of the market challenges the exclusive rights awarded to creators under conventional intellectual property law.[62] These technological advances have caused many creators to be concerned about greater piracy and trademark infringement, even as they themselves leverage derivative rights in their own works.[63] Thus, the ascent of a semiotic democracy, facilitated by the digital revolution, has led to the expansion of intellectual property rights and a more assertive promotion of these rights by creators.[64] As an illustration, the Recording Industry Association of America (RIAA) has taken action against individuals who produce videos that infringe on their copyrighted content by issuing "cease and desist" notices to video creators and collaborating with YouTube to clamp down on offending videos.[65] In addition, digital rights management (DRM) technologies that limit access to a particular work have impeded the development of the digital commons.[66] However, these restrictions have been burdensome for creators and consumers alike because the threat of legal action has stifled the creation of any work that even remotely samples or makes legal use of others\u27 works.[67]
Copyright is gradually assuming an enduring and infinite status as mere property, while trademarks and patents are expanding in range due to the digital revolution\u27s democratization of content distribution.[68] As a result, intellectual property rights, once viewed as a government monopoly to incentivize innovation, have transformed into a counterforce to innovation, granting greater authority over digital content and constraining the free expression of consumers.[69]
Consequently, semiotic democracy diverges from personality theory and other conventional rationales for intellectual property by affording consumers greater democratic involvement, as opposed to promoting greater centralized control by creators.[70]
An instance of semiotic democracy in action can be seen in the case of Elizabeth Stark, a writer who uploaded a compilation of Brazilian Baile funk music to her blog.[71] The mix was subsequently picked up by multiple other blogs and downloaded tens of thousands of times, earning a spot in The Wire\u27s compilation of the best mixes of 2005, a leading electronic music magazine.[72] In doing so, Stark had entered the cultural commons, a public sphere of cultural information accessible for sharing, reworking, and remixing.[73] The mix was disseminated without regard for copyright, and this cultural common has facilitated the proliferation of Baile music in Brazil.[74] This stands in contrast to conventional copyright law, which would lock down the work and preclude public access to, or manipulation of, the mix.[75]
The notions of semiotic democracy and personality theory are two of the most interesting justifications for in
ORGANIZATION, LAW AND INDIVIDUELS: THE PROBLEMATIC OF REGULATIONS AND LEGISLATION IN THE FACE OF CULTURE
Get PDFThe purpose of this research paper is to present a study and analysis of the interaction and discourse between law, individuals, and culture within organizations. It aims to explore the social issues that arise because of this interplay, highlighting their impact on society. The paper investigates how legislation and organizational elements challenge societal norms, values, and the social structure of the community.
Our approach is based on the literature and empirical observations accumulated throughout our professional and research ex- periences. The data we have collected is of a qualitative and exploratory nature, enabling us to have flexibility in the presentation, analysis, and formulation of initial conclusions and observations.
Keywords: Law; Local society; Organization Culture; Individual.
Introduction
Context
The cognitive context of addressing such topics stimulates every attempt to write and discuss them. Historically, law and culture are influential concepts in the cognitive system of social sciences. The challenge and paradoxes that distinguish society remain as a third concept and its institutional manifestations, such as the state, organizations, and economic, social, and political institutions. It also includes the nature of the social structure of the society\u27s components. Are we talking about a modern or traditional society, urban or local? Are we referring to a society governed by positive law and rationality, or a society shaped by customs, religion, and cultural values? This represents a prominent and important cognitive challenge.
In Algeria, the long history and events that the region has witnessed since ancient times make the spatial context another cornerstone for bringing together elements of history, social movements, identity, and social construction. The model of the modern state, the nature of development and organization, all these elements dominate any analysis and projection attempt. Hence, the significance of the endeavor to understand the subject within the context of the Algerian experience increases.
Objective
This research paper aims to present a set of observations regarding the relationship formed by the interaction of elements within the formal organization and its components, including individuals, legislation, and regulations, to achieve specific goals. It also addresses the social issues that arise as a reflection of this interaction within the larger society. Furthermore, it lays the groundwork for understanding the legal relationship in confronting societal norms and values within the community, as manifested in formal organizations and institutions, which are assumed to be “miniature societies.”
Methods
We will rely on a network of readings and field observations developed throughout our professional and research journey in organizational sociology and political sociology, as well as our experience working as a certified legal agent with customs. The data we have gathered has a qualitative and exploratory nature, which makes our approach flexible in presenting and analyzing the information and drawing initial conclusions and observations.
CULTURE AND LAW
The discourse of culture and law is enriched by literature and texts that address the relationship and the concepts involved. Here, the perspective of both Frankel and Braun[1] draws our attention. They argue that we often discuss law and culture as two systems that impose required behavior on individuals and organizations. However, they simultaneously argue that they are two interconnected yet distinct systems.
While the structures of law and culture may be similar, their differences significantly impact the application of rules issued under each system. Although individual behavior and patterns of living are subject to these rules, regardless of their cultural or legal sources, the law and culture differ in fundamental aspects, according to the researchers:
“(a) The identity of those who establish the rules;
(b) The purposes and core values of the rules;
(c) How these rules are initiated (1), developed (2), expressed (3), and applied (4);
(d) The extent to which they are accepted by those to whom they apply.” [2]
This is an important contribution to understanding this dialectical relationship and an attempt to construct conceptual frameworks around them.
In his exploration of the relationship between culture and law, specifically corporate governance, researcher Licht, A. N.[3] try in his study titled “Culture and law in corporate governance.” To understand the role of culture in corporate governance is of great importance, and institutional analysis requires an understanding of the cultural environment in which these systems are integrated. The researcher provides a significant and insightful overview in his paper on how culture interacts with the law, especially corporate law, to shape corporate governance and how this can help explain the diversity within corporate governance.
Drawing on cultural analysis, theories of cultural dimensions, social networks, and social capital, the researcher relies on these tools and theories to understand how the interaction between culture and law, particularly corporate law, influences the formation of corporate governance systems and helps interpret the diversity observed within those systems.
THE RELATIONSHIP OF INDIVIDUALS TO LAW: FROM RATIONALITY TO SOCIAL AND CULTURAL CONTEXTS
When we examine the various theoretical frameworks that have addressed the topic of individuals and organizations, we find several different perspectives. These perspectives range from focusing on the individual and their rationality to exploring the relationship between power, justice, law, and interests. They also consider the influences of cultural and social contexts on how individuals interact with procedures and rules (laws).
WEBERIAN-RATIONAL PERSPECTIVE
The Weberian perspective, particularly in Michel Crozier\u27s theory of the strategic actor, is an important framework for understanding the subject. The rational view (calculations) explains the so-called cost and benefit and how individuals deal with laws in organizations and society. Strategic analysis suggests that individuals do not respect rules due to their ability to perceive the benefits they gain through the process of non-compliance or circumvention of the law while at the same time realizing that their behaviors have non-serious or non-impactful effects compared to expected advantages/losses.
According to this perspective, individuals consider themselves strategic actors who try to achieve their goals and maximize personal benefit within the circumstances and challenges they face. At times, they may make decisions that conflict with laws if the potential benefits of those decisions outweigh the potential risks.
The strategic actor perspective provides an understanding of individuals\u27 motives and rational considerations in their dealings with laws. It sheds light on the complex relationship between respect and compliance with laws and strategic calculations and anticipated benefits.
POLITICAL – MARXIST PERSPECTIVE
The relationship between power/law on the one hand, and individuals/justice on the other hand, refers to the “political” view of the subject. Individuals reject the law/power when they believe or are driven by a system that can be called “revolutionary,” where the issue of rights and fairness is strongly raised. It is the political perspective that García Villegas[4] explains, as the political exists generally among those who have a critical conception of power and law.
The Marxist tradition is considered one of the elements in understanding and analyzing this perspective. Its central idea revolves around “resistance” and “revolution” against any “unjust” power (law). Individuals/groups (class) possess the “legitimacy” to reject “legal frameworks, the system of justice,” and “regulatory procedures and rules” because they are an “ideological system of the dominant class.” The issue of justice, as well as laws and ethics, is related to “ideology” and, more specifically, the “ideology of the ruling class.” According to Marx, ethical standards - the different contents attributed to concepts such as justice, freedom, equality, human rights, recognition, and so on - are ideological in nature.[5]
To add to this analysis, we can introduce Balbus\u27s idea of “formal equality”[6] in the trajectory of “fair” trials, which he describes as a “stable network that appears neutral, upon which the interests of the bourgeois class in accumulating and maximizing profits can thrive.” This system, known as “procedural justice,” works to convince individuals who possess nothing that they have legal rights and, therefore, a real opportunity to rise to the ranks of the bourgeoisie. This Marxist perspective presents the contradictions of capitalism in the structure of justice, law, and individuals\u27 relationship to them.
Conversely, On the other hand, it is possible to argue for the limitations of Marxist analysis. The relationship of traditional societies in their formation and institutionalization differs greatly from that of modern and capitalist societies (the West). For example, the state is typically associated with the law, as it is a historical product of the formation of market institutions, the state, and civil society, all interconnected with the law. Meanwhile, there are societies that have lived or continue to live, at least to some extent, in a pre-state condition or without a state, as argued by Clastres (1974) in his book “Society Against the State.”[7]
The advantage we see in these traditional societies is their resilience, which persisted for a long time, disregarding the idea of the state. Clastres also points out that these societies are not merely stateless societies, but much more than that, they are societies against the state.
ANTHROPOLOGICAL PERSPECTIVE: THE CULTURAL AND THE HISTORICAL CONTEXTS
Anthropology, as a human and social science, has approached the legal phenomenon by examining social, cultural, symbolic, and historical contexts. It provides valuable scientific resources to explore the interaction of law with culture, including identity, history, social arrangements, power relations, and kinship.
In his commentary on the characteristics of “Legal Anthropology,” Le Roy pointed out the following feature:
“By reducing the anthropological process to Law, we do not believe that we are wrongly favoring law as “a category in itself” but evaluating the legal fact in its relationship with social facts, measuring its impact exactly and recognizing the areas in which it does not intervene, those where it fails or those in which it could intervene, depending on the requirements specific to social facts”. [8]
Furthermore, the study of individuals\u27 relationship with an organization and its legal structure has yielded significant contributions. In this regard, Geert Hofstede\u27s research on cultural dimensions is pioneering and can provide an anthropological perspective on the diversity and variations in organizational, managerial, and legal structures in their interaction with individuals. It particularly sheds light on their impact on behavioral patterns within the organization, whether for employees or managers.
Cultural and social contexts explain the extent of individuals’ differences in dealing with organizational and legal elements. For example, the hierarchical sequence within an enterprise (organization) is seen as a reflection of inherent inequality. Centralization is common, and subordinates are expected to know what they should do, while the ideal leader is seen as a benevolent autocrat. [9]
According to Geert Hofstede, the power distance is the extent to which individuals with less power accept that power is distributed unequally in companies and other organizations (distributed unequally but legally and according to clear procedures and rules). In other words, people in high power distance cultures are more accepting of status differences than people in low power distance cultures. For Hofstede, this dimension is primarily linked to the issue of “wealth”.[10]
For our analysis and observations, it is linked to “propriety” in traditional societies. This example refers to the influence of social and cultural context on the acceptance of a legal administrative arrangement and the ways of dealing and interacting with it, according to the type of culture. The social and historical structure usually determines or greatly influences individuals\u27 relationships with different positional structures (organization and law). It is a relationship that revolves around “legitimacy”, which is socially constructed.
The issue of cultural elements in the anthropological perspective differs to some extent from the Marxist - structuralist perspective, which discusses the elements of cultural and symbolic structures but does not treat cultural symbols as superstructural residues. Louis Althusser,[11] for example, considers these symbols, as well as ideologies, as relatively independent and material elements, making them more than mere reflections. The distinction between the base and superstructure is then overcome, and the cultural elements participate in the production of the self and social reality.[12]
In conclusion, through this humble presentation, we are discussing the interactions of “individuals, organization, and law” between compliance and non-compliance, the rationality of actors in capitalist and organizational contexts, the revolutionary or rebellious perspective, and the influences of collectivism or cultural, social, and historical contexts on traditional social structures.
ORGANIZATION AND ENTERPRISE, POWER AND RECOGNITION DEBATE: CULTURE OR LAW?: PRELIMINARY NOTES - THE CASE OF ALGERIA
Through all the previous discussion of different, conflicting literature, and cognitive perspectives, the analysis that follows will be based on the Algerian case, the experience we are discussing through its own dedicated network of readers on one hand, and field or contextual observations on the other hand. The discussion we raise revolves around how cultural and legal elements, within the framework of social action in institutions and organizations, such as in Algeria, focus on how actors, both individuals and groups, in different contexts of interaction and administrative and managerial relationships, and the communication system, engage in various forms of activities. Their perceptions and representations of themselves, others, and power relationships are highlighted. They may, when necessary, circumvent procedures and laws and resort to elements of culture and the environment, especially in the distinctive contexts of traditional and local communities. In the same context, there is also a resort to procedures and laws in various activities. A cycle of compliance and non-compliance calls for questioning these contradictions and discrepancies.
In addition, these contexts have shaped the experience of industrialization in the 1970s, and they continue to influence work practices and economic and service organizations alike. Delpeuch, Dumoulin, & de Galembert, have wondered:
“What awareness and knowledge do individuals and groups have of legal phenomena? What place does the reference to law occupy in the definitions and meanings that people attribute to the problems they encounter in everyday life? What grips on situations does the use of a framework of legal interpretation confer? What power in social relations does the possession of legal skills provide?”[13]
Within the philosophy of law, the interests of both moral and legal persons are determined through laws. It is the concept of “personal rights” that the legal system begins with through the duality of rights and legal protection. In other words, every right requires a legal subject, and every legal person, as an individual, is entitled to legal protection.
Institutions and organizations, in general, are legal entities where duties and rights, powers and authorities are determined based on an individual’s position in the hierarchy. Contracts are designed to regulate these matters. In the Algerian experience, culture often serves as a resource for values, customs, and standards. It also serves as a resource for contracts and legislation. However, the observed reality indicates a tendency to go beyond what is right and just towards “seeking values” and “culture,” in the employment and management of career paths, and the excessive incorporation of elements of “localism and loyalties” in the organization, drawing heavily from the social environment.
In Algeria, literature is rich with examples and important observations for field studies. It explores how non-organizational elements have influenced and continue to influence the dominance of “organization and enterprise”. Ali El-Kenz points to this conflictual relationship, or what he refers to as the historical misunderstanding, between social groups within the enterprise. The bureaucrats personify authority and, therefore, resort to informal loyalty and client networks in management rather than relying on the “formal” and thus procedures and rules (law and legislation). On the other hand, the technocrats, a social class that operates based on formality, as well as efficiency and improving performance (production).
It is a case of lacking a consensus on a single vision for the project. There are conflicting interests among different groups, especially those in the power hierarchy, including bureaucrats (who prioritize power and control) and technocrats (who prioritize quality, production, and progress). This situation is the result of historical, political, and economic contextual factors. [14]
The nature of society in Algeria strongly reflects the nature of the organization. The power relationships defined by legislation and laws in organizations and institutions face cultural resistance. Algerian individuals adhere to the traditional and old form of property (including property in all its forms, power, and position), which was based on tribal and undivided familial structures. This formed a point of resistance, even in the presence of external social entities such as Arab and Turkish control and later French colonization, which failed to break the “organization” built on blood relations, kinship, and any form of relationships.
We mentioned property as an important element in understanding the relationship of the Algerian individual with the law. Historically, the nature of property, which was and still is prevalent in Algeria as well as in the Maghreb (Algeria, Tunisia, and Morocco), was determined by Bessaoud:
In his statement, “The Arab Maghreb provides a unique example of patterns of accessing property or land ownership in the pre-colonial period. A set of land rights derived from belonging to the community, and Islamic law, as well as local customs and practices, defined the methods of acquisition and enjoyment.” [15]
This historically shaped social system deeply influences Algerians’ relationship with organization and law. Furthermore, Jack Berque,[16] observed in his anthropological analysis of Maghreb societies the invention of a “modern Algerian Islamic law” that plans to “incorporate ancient customs into new and solid molds” (the law).
It is the “Maghreb ecology” that embodies the cultural, social, and historical resilience to change, as well as the ability to adapt and reproduce traditional elements within modernity, as expressed by Mhammed Boukhobza.[17]
Conclusion
Life in society is a field of interaction and transition between conflict and resolution. This is a real example of the interplay between culture and law. The customs and values of historically formed communities, as well as the laws and regulations that extend beyond history and culture, contribute to establishing and enforcing boundaries and restricting or granting freedom.
The rule of law limits the freedom of individuals to prevent harm to others. However, the law is not only binding but also allows individuals to live in a safe environment, avoiding a “law of the jungle” situation.
When individuals do not respect legal rules because they adhere to other types of social, ethical, and symbolic standards, such as cases related to “honor” or “status and symbolic value of individuals or possessions,” it results in non-compliance based on the belief that it is righteous behavior.
This is what we wanted to conclude with because it is not easy to encompass a topic rooted in philosophy, history, and move between social, anthropological, and psychological aspects. The magnitude of the debate and discussion is significant and ongoing, as it is indeed a complex issue. This was an attempt, albeit modest, to capture some theoretical ideas and combine them with field observations and personal readings.
Bibliography
Althusser, L., & Brewster, B. (2001). Lenin and Philosophy and Other Essays. NYU Press.
BADRAOUI, S., Lalaouna, D., & Belarouci, S. (2014). Culture et management: le model d’Hofstede en question. Cross-Cultural Management Journal, 16(2).
Balbus, I. D. (1977). Commodity Form and Legal Form: An Essay on the “Relative. Law and Society Review, Vol. 11, No. 3, pp: 571-588. https://legalform.files.wordpress.com/2017/08/balbus-commodity-form-theory.pdf
Berque, J. (1958). Droit des terres et intégration sociale au Maghreb. Cahiers internationaux de sociologie, 25.
Bessaoud, O. (2013), La question foncière au Maghreb. La longue marche vers la privatisation, Les Cahiers du CREAD, n° 103.
Boukhobza, M. (1989). Ruptures et transformations sociales en Algérie. Office des Publications Universitaires. Algérie.
Clastres, P. (19
INVESTIGATING POLITICAL SECURITY AS A SUBSET OF HUMAN SECURITY WITH A FOCUS ON URBANIZATION IN HUMAN RIGHTS
Get PDFThe Political Security Review of the human security subcategory, which focuses on human rights, provides a comprehensive overview of how protecting and promoting human rights is critical to maintaining political stability and ensuring security in societies. This subcategory recognizes that violations and abuses of human rights can lead to profound instability, social unrest, and conflict. By focusing on this aspect of human security, policymakers and scholars emphasize the need for a comprehensive approach to protect individuals\u27 fundamental freedoms, ensure their participation in decisionmaking, hold those responsible for human rights violations accountable, and address systemic inequalities. In this way, they seek to create an environment where all people can exercise their rights without fear of retribution or discrimination. A thriving democracy and sustainable peace require not only robust political institutions, but also a commitment to upholding human rights as the basis for achieving lasting security.
Keyword: Human Rights, Political, Security, Law, Urbanization, United Nations
Introduction
Urbanization is a global phenomenon that has changed the way we live, work and interact with each other. As more and more people move to cities in search of better opportunities, the concentration of power and resources in urban areas becomes increasingly apparent. This concentration of power often leads to political dynamics that can either protect or undermine human rights. Political security in this context refers to the stability and effectiveness of government systems in urban areas. It encompasses the ability of governments to protect their citizens from internal and external threats while upholding their fundamental rights and freedoms. However, with increasing urbanization, the challenges governments face in ensuring political security are becoming more complex. One of the biggest challenges is the rapid growth of informal settlements or slums in cities. These areas often lack basic infrastructure, services, and effective governance structures. The lack of adequate housing, sanitation, and access to clean water not only violates individuals’ right to a decent standard of living, but also creates an environment ripe for social unrest and political instability.
The overcrowded and unsanitary conditions in informal settlements pose a significant health risk to residents. The lack of proper waste disposal and limited access to health facilities contribute to the spread of disease and epidemics. This further exacerbates already poor living conditions and puts a strain on the overall well-being of the community. The presence of slums often leads to higher crime rates and a greater propensity for violence. The lack of effective administration and law enforcement in these areas creates an environment where criminal activity can flourish. This not only threatens the safety of residents but also inhibits economic development throughout the city. Addressing the challenges posed by informal settlements requires a comprehensive approach. This includes implementing urban planning strategies prioritizing affordable housing, improved infrastructure, and access to basic services. Empowering residents through community participation and providing education and skills training opportunities can help break the cycle of poverty and create a more inclusive and sustainable urban environment.
1.Defining Political Security in the Context of Human Security
Political security plays a critical role in ensuring the general welfare and safety of individuals and communities. It encompasses various aspects, such as the protection of human rights, the prevention of political violence, and the promotion of democratic governance[1]. A fundamental aspect of political security is respect for human rights. Governments must ensure that individuals are protected from any form of discrimination, oppression, or abuse based on race, ethnicity, religion, gender, or any other characteristic. By upholding human rights principles, political security creates an environment in which people can express themselves freely without fear of persecution or reprisal. Political security also includes preventing political violence and conflict that can threaten the stability and security of individuals and communities. This includes addressing terrorism, insurgency, civil unrest, and armed conflict. By effectively managing power dynamics within societies and promoting peaceful solutions to disputes, political security helps maintain stability and reduces the risk of violence. Moreover, political security is closely linked to democratic governance.[2] It underscores the importance of accountable institutions that can. To these aspects, political security also includes protecting human rights and the rule of law in a society. It ensures that individuals have equal access to justice and are treated fairly within the legal system. Political security also includes protecting civil liberties, such as freedom of speech, assembly, and association, as well as international relations. It includes maintaining peaceful relations with other nations, promoting diplomacy, and resolving conflicts peacefully. This aspect of political security focuses on preventing war, promoting disarmament, and fostering cooperation among nations. Another important element of political security is preventing and dealing with political violence. Governments must work to create an environment in which citizens feel safe from threats posed by internal and external actors. This includes accountable leadership that is responsive to the needs of its citizens.
1.1. Importance of Examining Urbanization in Human Rights Perspective
Considering urbanization from a human rights perspective is paramount to understanding the multiple impacts and challenges associated with the rapid growth of cities. As cities grow at an unprecedented rate, it is critical to assess the social, economic, and environmental consequences that may potentially violate human rights. Urban areas often concentrate on poverty, inequality, and marginalized communities, limiting access to education, health care, clean water, and sanitation. By analyzing urbanization within a human rights framework, policymakers can identify systemic inequalities and work toward implementing inclusive policies that provide equal access to resources for all residents. It can also identify vulnerable groups, such as migrant workers or indigenous communities, that may be displaced or discriminated against as a result of urban development projects. Examining the human rights impacts of urbanization can guide sustainable urban planning efforts by addressing issues such as affordable housing, transportation accessibility, and environmental degradation. In this regard, recognizing the link between urbanization and human rights is an important tool for promoting equitable and inclusive cities that prioritize the well-being and dignity of all people. By recognizing the potential risks and challenges faced by vulnerable groups such as women, children, and the elderly, cities can take targeted action to ensure their safety and well-being. This can include creating safe public spaces, improving access to health care and education, and promoting social inclusion. examining urbanization from a human rights perspective is paramount to ensuring that the rapid growth and development of cities does not come at the expense of human rights. Urbanization has the potential to both promote and hinder the realization of human rights, particularly for marginalized groups such as low-income populations and displaced communities. By analyzing urbanization from a human rights perspective, policymakers and stakeholders can better understand how urban planning decisions affect issues such as access to adequate housing, clean water and sanitation, health care, education, employment opportunities, and social inclusion. This perspective also underscores the importance of addressing environmental concerns and promoting sustainable urban development practices that prioritize human well-being and dignity.
1.2. the Relationship between Political Security and Human Security
The relationship between political security and human security is complex but interdependent. Political security refers to the stability and protection of a nation-state, its territory, and its sovereignty from internal and external threats.[3] On the other hand, human security focuses on the well-being of individuals by protecting them from various forms of harm such as poverty, disease, violence, and environmental degradation. While political security has traditionally focused on the interests of the state, it is increasingly recognized that ensuring human security is critical to the overall stability and peace in a society. An unstable political environment can threaten human security by fostering social unrest or systemic inequalities. Conversely, threats to human security, such as food insecurity or the violation of fundamental rights, can politically destabilize a nation by fueling public dissent. Therefore, a balanced approach that prioritizes both political and human security is critical for sustainable development, peaceful coexistence, and resilience to new challenges in today’s interconnected world. Political and human security are closely intertwined, and neglecting one can have serious consequences for the other. For example, a lack of political stability can hinder human security efforts and make it more difficult to access basic needs and protect fundamental rights. On the other hand, people who feel secure in their basic needs and rights are more likely to actively participate in the political process, promoting a stable and inclusive society. A comprehensive approach to security should also consider environmental sustainability. Environmental degradation and climate change pose significant threats to both political and human security. Ecosystem disruptions can lead to resource scarcity, exacerbate social tensions, and potentially trigger conflict. Therefore, protecting the environment and promoting sustainable practices are essential components of ensuring long-term security for people and nations. In today’s interconnected world, addressing global challenges requires international cooperation and collaboration. No nation can achieve sustainable development and security on its own. By building partnerships and fostering dialog, countries can work together to address problems such as poverty, inequality, and terrorism. This collective effort not only enhances human security, but also strengthens political stability and promotes a more peaceful and resilient global community.
1.3. Mutual Reinforcement of Human Security and Human Rights
The mutual reinforcement of human security and human rights is a concept that highlights the interdependence and interrelatedness of these two fundamental aspects of human well-being. Human security refers to the protection of the basic needs of individuals, including their physical, economic, and social well-being, while human rights are a set of universal entitlements and freedoms that every human being possesses by virtue of being human. The relationship between human security and human rights is mutually reinforcing, as the realization of human rights contributes to human security, while the preservation of human security enables individuals to freely exercise their rights. Human rights play a crucial role in promoting human security. Recognizing and respecting human rights ensures that individuals have access to important resources such as adequate food, clean water, health care, and education. Granting individuals, the right to these basic needs has a positive effect on their physical, economic, and social well-being and ultimately leads to overall human security. The right to education, for example, provides individuals with the knowledge and skills they need to find employment, increase their earning potential, and improve their quality of life. By guaranteeing these rights, societies can create an environment that promotes human security. In situations where people are exposed to violence, conflict, poverty, or displacement, their ability to exercise their rights is severely limited. In such scenarios, addressing human security is a prerequisite for protecting human rights. Ensuring people’s physical safety and well-being, for example, allows them to exercise their rights to freedom of expression, association, and assembly without fear of persecution or harm. By addressing the root causes of insecurity, such as poverty, inequality, and discrimination, societies can create the conditions for the enjoyment of human rights. Mutually reinforcing human security and rights is critical to creating a just and equitable society. Human rights contribute to human security by guaranteeing individuals’ access to basic needs, while human security creates the necessary conditions for individuals to freely exercise their rights. By recognizing and addressing human security concerns and human rights violations, societies can create an environment that promotes and protects the well-being and dignity of all people.
2.Key Challenges and Threats to Political Security in Urban Areas
A key challenge to political security in urban areas is the presence of organized crime and militant groups. These non-state actors often undermine the rule of law by engaging in illicit activities such as drug trafficking, extortion, and terrorism. They create an atmosphere of fear and instability that makes it difficult for political institutions to function effectively. Another threat is social unrest fueled by socioeconomic inequalities, unemployment, and lack of access to basic services such as education and health care. In urban areas with high population density, these grievances can easily escalate into riots or protest movements that pose a direct challenge to political stability. Urban areas are vulnerable to cyber threats that can disrupt critical infrastructure systems such as power grids or communications networks. The reliance on technology in cities makes them tempting targets for hackers seeking to cause chaos or steal sensitive information. Therefore, policymakers must address these challenges through effective law enforcement strategies, inclusive socioeconomic policies, investments in infrastructure resilience, and cybersecurity measures to ensure political security in urban areas.
Rapid urbanization and population growth in many cities have led to growing environmental challenges impacting political security. Urban areas often face problems such as pollution, inadequate waste disposal, and limited access to clean water and sanitation. These environmental problems not only pose health risks to the population but also contribute to social unrest and political instability. Inadequate infrastructure and urban planning exacerbate these challenges, as they can lead to overcrowding, traffic congestion, and inadequate public transportation systems.
2.1. Political Instability and Governance Issues in Urbanized Zones
As cities grow and become more complex, they often face a number of political and administrative dilemmas that impede effective governance. These problems include corruption, inadequate infrastructure, social inequality, and the inability to efficiently meet the needs of citizens. Rapid urbanization leads to increased competition and limited resources, exacerbating political instability and administrative challenges. Understanding and addressing these issues is critical for governments to ensure stable and effective governance in urban areas. A major problem in urban areas is corruption, which undermines trust in government and exacerbates political instability. In many cases, urban areas attract large investments, leading to more opportunities for corruption and illegal practices. Bribery, kickbacks, and misappropriation of public funds consume resources that should be used for infrastructure development, public services, and poverty reduction. These corrupt practices reinforce social inequalities by giving certain groups disproportionate access to wealth and resources, further destabilizing the political landscape.
Inadequate infrastructure in urbanized areas poses a challenge to governance. Rapid urbanization is straining existing infrastructure systems designed for smaller populations, increasing pressure on transportation networks, housing, sanitation, and health services. Inadequate investment in infrastructure development leads to traffic congestion, pollution, and inadequate access to basic services for urban residents. These problems can lead to social unrest and political discontent as citizens perceive the government’s inability to manage the effects of urbanization.
Finally, governments in urban areas often struggle to effectively meet the demands of the public, leading to political instability. Urban areas are dynamic and diverse, encompassing different interest groups, ethnicities, and socioeconomic backgrounds. Dealing with these diverse interests and providing effective governance becomes increasingly difficult as urban populations grow. Failure to promptly address public demands can lead to protests, demonstrations, and other unrest that disrupt stability and governance. Political instability and governance issues in urban areas are complex phenomena that require careful attention from governments. Combating corruption, investing in infrastructure development, and effectively meeting public demands are essential components of stable and effective governance in urban areas. As urbanization continues to increase globally, it will be critical for governments to recognize and understand these challenges to ensure sustainable and equitable development in urban areas.
2.2. Inequality, Marginalization, and Human Rights Violations
Inequality, marginalization, and human rights violations are interconnected, creating a cycle of injustice and discrimination within society. These problems are deeply rooted in power imbalances, systematic discrimination, and social exclusion, leading to the violation of basic human rights. To fully understand the complexity of these problems, it is important to examine their causes, consequences, and potential solutions. In this way, we can work toward creating inclusive societies that uphold human rights for all people, regardless of race, gender, socioeconomic status, or any other characteristic. Inequality can manifest in various forms, such as economic disparities, inadequate access to education or health care, or discrimination in employment opportunities. These inequalities often result in certain groups being marginalized and denied the same opportunities and rights as others. This marginalization perpetuates a cycle of disadvantage and undermines social cohesion. It is important to recognize that inequality is harmful not only to marginalized groups, but also to society as a whole, as it hinders progress and development. Marginalization and inequality are closely linked to human rights violations, as they directly affect the ability of individuals to fully exercise their rights. Basic human rights such as the right to life, liberty and security or the right to education and health care should be universally protected. However, marginalized people often face obstacles to realizing these rights, such as limited access to justice or exclusion from political participation. This is particularly true for minority groups, indigenous peoples, and refugees, disproportionately affected by human rights violations due to intersecting forms of discrimination.
Addressing inequality, marginalization, and human rights violations requires a comprehensive and multi-faceted approach. It is critical to address the root causes of these problems, such as discriminatory policies, biased cultural norms, and the unequal distribution of resources. Governments, civil society organizations, and the international community should work together to promote inclusive policies, strengthen legal frameworks, and invest in social programs that address the specific needs of marginalized groups. Raising awareness and educating people about human rights can help combat prejudice and stereotypes and promote an equal and just society for all. Inequality, marginalization, and human rights violations are closely intertwined and perpetuate a cycle of discrimination and injustice in societies. These problems should be addressed holistically by recognizing the underlying causes and the consequences they have on individuals and society. By promoting equality, combating marginalization, and upholding human rights, we can strive to build inclusive societies in which every individual can fully exercise their rights and actively contribute to social progress.
3.Urbanization and Human Rights in Developing Countries
Urbanization is the rapid increase in the proportion of people living in urban areas as a result of social, economic, and technological changes. This phenomenon is particularly evident in developing countries, where a growing population and rapid rural exodus have led to the expansion of cities and the creation of large slums. While urbanization can bring many benefits, such as increased access to education, employment opportunities, and infrastructure, it also poses a major challenge to human rights in developing countries. One of the most important human rights issues related to urbanization in developing countries is the issue of inadequate housing and living conditions. As cities grow rapidly, the demand for housing exceeds the construction of formal housing, forcing many individuals and f
THE HISTORICAL ROLE OF RELIGION AND NATIONALISM IN THE CONSTITUTIONS AND LAWS OF SYRIA, LEBANON AND TUNISIA
Get PDFPeople knew the laws and provisions with the arrival of the first human gathering to the stage of civilized society, which requires the formulation of provisions and laws to regulate various aspects of life and the formulation of rights, duties and penalties when committing violations and crimes. One of these laws is the Law of Eshnunna, which preceded the Code of Hammurabi over the years. The latter regulated various aspects of life and included provisions and laws developed by the rulers at that time and considered them to represent the will of the gods and obligated the people to implement them, making this law the first positive law.1 Religion has had a great and important place since the formulation of the first legal status by the rulers of ancient Iraq, and from here, we find the strength and historical relationship between law, religion, and nationalism, which has continued to this day.
Keywords: Religion, Sharia, Islam, Christianity, legislation, history.
Introduction
Based on time and historical factors, we find that societies continued to develop and witnessed new canons other than positivism by the rulers, which are known as “the high canons”. Constitutions and laws of many countries became closely associated with religion, and the “canons of the heavenly religions”, and the provisions they contain became the basis of legislation and jurisprudence. The status of religion and its relationship with the law is not new. Yet, it is an old relationship based on harmony in content and principles, and this is what we find today in many constitutions of Arab and non-Arab countries, which stipulate the status of religion and take Sharia as the basis for legislation in several areas. The relationship between religion, nationalism and law is clearly manifested in the countries of the Near East, specifically the Arab countries. This relationship is embedded in several areas, for example, but not limited to marriage, divorce, determining the state religion, the religion of the president of the Republic, the source of legislation and many others. Moreover, the historical factor is considered important in making the status of religion strong and prominent in several Arab and Middle Eastern countries, and there has always been a reason for the strength and status of religion in drafting the laws and repealing them.
1. The history of the role of religion and nationalism in the Syrian legal and constitutional models
Greater Syria was subjected to Ottoman rule for many decades. During this time, many laws and provisions were introduced, and religion played a pivotal role in forming the Sultanate and legislation. The relationship between religion and legislation was confirmed that the Ottoman sovereigns represent the sovereignty of the Islamic creativity. Article (4) of the same Constitution also emphasized that the Sultan protects the Islamic religion.[2] Furthermore, Article (8) stipulates that all subjects of the Sultanate are Ottomans. In the same vein, Article (11) stipulates that Islam is the religion of the state, emphasizing the freedom of other religions to practice their rituals.[3] It is worth noting that in the Levant, many ethnic groups also exist in Turkey due to geography and proximity. For instance, we find Syriacs, Assyrians, Kurds, Circassians and other groups who were, in fact, Ottomans, hence applying Article (8) of the Ottoman Constitution of 1876.[4] The Ottomans’ exit from the Levant in 1919 marked the beginning of a new stage. Arab nationalism and religion became strongly present in politics, as a provisional government was formed in Damascus, and King Faisal bin Hussein, the leader of the Arab Revolution, announced on October 5, 1918, the formation of an independent constitutional Arab government for all of Syria (Syria, Lebanon, Palestine, Jordan).[5] The first Constitution of Syria was ratified on July 13, 1920, when Syria was a kingdom under the rule of King Faisal bin Hussein. This Constitution stipulated that Islam is the religion of the king in Article (1) and that the Arabic language is the official language in Article (3).[6]
In 1922, the League of Nations officially approved the French Mandate over Syria and Lebanon, and a new era began when France deliberately divided Syria into states on a sectarian basis, namely the state of Damascus, the state of Aleppo, the state of Alawites, and the Druze state. The French language was also imposed in schools, and special educational curricula were adopted in teaching, in addition to the activity of the missionary movement and systematically working to bring about changes in Syria and turn it into a French colony. France has also made changes in the judiciary, introduced non-religious legislation, and subjected the Islamic endowments to its direct authority and management.[7]
As for the Constitution of 1930, which was drafted under the French Mandate over Syria, we find that Syria has become known as the Syrian Republic and that the religion of the president is Islam and Arabic is the official language, and we find the transformation of Syria from a kingdom to a republic and the recognition of other languages besides Arabic, such as Kurdish in the North, Turkish, Syriac, Armenian and also French, in addition to guaranteeing the rights of religious and ethnic minorities.[8]
In comparing the Constitution of Syria of 1920 and 1930, we find several differences, not only pertaining to the transformation of Syria from a kingdom to a republic but also regarding religion and Arab nationalism. The Islamic religion was mentioned only three times when talking about the religion of the president of the Republic and the Islamic endowments, and the focus on the Syrian identity is more than the Arab identity, and this is clear from the term of the Syrian Republic without mentioning the character of Arabism.[9]
The policy of the mandate played a role in the emergence of differences between the Constitution of 1930 and the Constitution of 1920, and this is what we noticed in the absence of Islamic jurisprudence as a source of legislation and the recognition of other languages besides Arabic as the official language.
The issue of language and its connection with religion is also very important. The Islamic religion is an Arab religion, and the Holy Quran is an Arabic book. The topic of Arab nationalism and the Arabic language and its connection with the Islamic religion cannot be separated. Therefore, we note the absence of mention of Arabism and Arab Nationalism in the Constitution of 1930 because of the French mandate policy, which divided Syria into sectarian states, rejected the Syrian constitution, and emphasized the unity of the Syrian territory.[10] The French mandate ended with the exit of its forces from Syria and gained independence. Later in 1950, the new Syrian constitution was ratified, and defined the features of the state and its goals. This period of Syria’s political history witnessed a conflict of ideas and trends between Syrian parties in Parliament, such as the People’s Party, the Communist Party, the National Party, and the Muslim Brotherhood party. The inclusion of the Syrian constitution of clear, detailed Articles has given importance and status to Arab nationalism, the Islamic religion and respect for other religions and beliefs, in contrast to the Constitution of 1930, which witnessed a decline in the issue of nationalism and religion. Although the Republic is referred to simply as the “Syrian Republic”, the following articles explicitly state the Arab - Islamic identity of Syria. The first article stated the following: 1) Syria is a fully sovereign representative democratic Arab Republic, 2) it is an indivisible political unit and part of its territory may not be given up, 3) the Syrian people are part of the Arab nation. With regard to the role of religion, the third article stipulated the following: 1) the religion of the president of the Republic is Islam, 2) Islamic jurisprudence is the main source of legislation, 3) Freedom of belief is inviolable, and the State respects all monotheistic religions and guarantees freedom to perform all their rituals provided that this does not disturb public order, 4) the personal status of religious communities is inviolable and respected. Finally, the fourth article stated that: “Arabic is the official language”.[11] In 1958, Syria entered a union with Egypt, and Syria and Egypt became known as the United Arab Republic. The Union collapsed in 1961. The Baath Party, with an Arab and nationalist orientation, came to power in 1964, During this time, Syria witnessed the issuance of the Constitution of unity with Egypt and several other constitutions after the Baath Party came to power.[12] This is also included in the Constitution of Syria of 1973, where Article (1) it emphasizes the Arabism of Syria and that it is part of the Arab nation, and in Article (8) on the leadership of the Baath Party for the State and society, in addition to mentioning the religion of the head of State, which is Islam in Article (3).[13] The Constitution of Syria of 2012 also emphasized in the preamble of the Constitution the Arabism of Syria and that it is part of the Arab nation, while Article (8) was amended, which states that the political system is based on the principle of pluralism and power is exercised democratically through voting. Article (3), prescribed that the religion of the president of the Republic is Islam and that Islamic jurisprudence is a source of legislation and affirmation of respect for all religions and beliefs.[14]
2. Lebanon and the role of religion and nationalism in its laws and legislation
With the subjection of Greater Syria to Ottoman rule, Ottoman regulations and constitutions were applied in Lebanon and Syria. Later, Lebanon and Syria were subjected to the French mandate. During this period, Lebanon was part of Syria up until General Henri Gouraud proclaimed the creation and independence of the state of Greater Lebanon in September 1920.[15] The Lebanese constitution was issued on May 23, 1926, and stated that Lebanon is an Arab country and emphasized the freedom of belief and respect for all religions, but the religion of the president of the Republic was not mentioned.[16] Lebanon has a unique religious and ethnic composition, and this is due to its geographical location, in addition to many nationalities that settled in the Levant and found refuge in the region from wars and persecution, such as Kurds, Armenians and Circassians. The Lebanese constitution recognizes 18 different sects in Lebanon, and religion plays a significant role in constitutional and political life. These sects include Christians, Maronites, Orthodox, evangelicals and Protestants, Sunni Muslims, Shiites, Alawites, as well as monotheistic Druze.[17] When Lebanon gained its independence in 1943, it agreed to manage government affairs according to the national charter formula, an unwritten agreement between Christians and Muslims in Lebanon. While the representative of Christians in this agreement was Bishara Al-Khoury, Muslims were represented by Riad al-Solh, the first head of government following independence. The charter stipulates that Lebanon should be considered an independent country if Muslims renounce the demand for return and unity with Syria, in return, Christians renounce the claim to French protection and Lebanon should be considered an independent country, and the president should be a Maronite Christian, the prime minister a Sunni Muslim, and the speaker of Parliament a Shiite Muslim.[18] There are Lebanese Christian parties such as the Lebanese Phalange Party and the Lebanese Forces Party, Muslim parties such as the Shiite Hezbollah and the Sunni Future Movement, Druze parties such as the Progressive Socialist Party and many others[19]. On April 13, 1975, Lebanon witnessed the most violent civil war in its history, and the country is still suffering from the effects of this war up until today. With the signing of the Taif agreement, the Lebanese civil war ended. The agreement affirmed the Arabism of Lebanon and defined the powers and tasks of the president of the Republic, the House of Representatives and the ministers, stressed the Lebanese state’s sovereignty on all its territories, and worked to restore the Lebanese territories occupied by Israel. The agreement also stressed Lebanon and Syria’s distinctive and historical relationship, which calls for permanent cooperation for the region’s stability.[20] We can say that the role of religion and nationalism is clearly shown in Lebanese life, both at the political and educational levels. Moreover, today, there are discussions within Lebanese society on the origins of the Lebanese people and the Arabization of Lebanon.
3. The role of religion and secularism in Tunisian constitutions and regimes
Throughout the history of Tunisia, there are similarities with the history of Syria and Lebanon. Tunisia came under the Ottoman rule in 1590, and the Ottoman Sultan appointed a governor named Pasha in addition to assistants from officers and military.[21] After the revolution of 1951 in Tunisia against the Ottomans, Tunisian figures came to power, and the position of the Ottoman “Pasha” became an honorary position without any powers, but the manifestations of Ottoman dependence on Tunisia remained during the rule of the Tunisian leaders and these manifestations were present through several conditions, such as the legitimacy of the rule in Tunisia after the issuance of a decree from the Ottoman Sultan that the country was governed according to Islamic law and the flag associated with the Ottoman state was retained and the minting of money as well.[22] There is religious and sectarian diversity in Tunisia, as is the case in Syria and Lebanon. Islam is the majority religion in Tunisia, which 97% of the population follows. A significant part of the Muslim population follows the Maliki ash’ari madhhab. In addition, there are adherents of other Muslim sects, including Shia, Ibadi, Hanafi, Hanbali, and Ahmadiyya. As for the other religions, it is estimated that there are about 1,500 Tunisian Jews, most of whom live on the island of Djerba, and there are about 5,000 Tunisian Christians in the country, most of whom belong to evangelical churches. Moreover, there are hundreds of adherents of the Baha’i religion.[23] The Tunisian society brings together a mixture of ethnicities, including Arabs and Amazigh, in addition to Jews and European and African immigrants. The Amazigh, whose number is estimated at 500 thousand in Tunisia, while we find a larger concentration of them in Tunisia and Algeria.[24] In the midst of the ongoing conflict over the nationalism of Tunisia, we find from the first Constitution issued in Tunisia in 1875 until the last Constitution in 2022, which emphasized in the fifth and sixth chapters on the freedom of Tunisia and the work to achieve the purposes of the Islamic religion and the affirmation that the Arabic language is the official language of the country.[25] Following the collapse of the Ottoman Empire, French troops entered Tunisia in 1881 pursuant to the terms of the Berlin agreement, which granted France the occupation of Tunisia with British approval and the French forces led by the French foreign minister Jules Ferry arrived and presented to the Tunisian governor “Bey” two copies of a French-Tunisian treaty prepared in advance and given five hours to approve or reject was finally signed and included several items, the temporary presence of French troops in the Sajjal and border areas until the Tunisian administration could maintain security and order, in addition to the inability of the Tunisian ruler “Bey” to sign any agreement or custom with a foreign country without the consent of France in exchange for protecting him and his family and this treaty was called the Bardo treaty.[26]
Later, a second treaty was signed that granted France absolute protection over Tunisia, and this treaty was known as the Marsa agreement in 1883, which granted France the exercise of financial and administrative competencies that it deems beneficial to Tunisia, the treaty was signed despite the opposition of the French parliament, which contradicts the Bardo treaty, which provides for the retention of the Tunisian entity and unity.[27] The authority to enact Tunisian laws and legislations was subordinated to the French courts, and the French penetrated into all administrative, military and educational functions.[28] With regard to the issue of nationalism and language, France has tried to spread the French language and culture by establishing French schools and formulating educational curricula in French, but these measures were met with great popular rejection, and Tunisians stressed the need for education in Arabic in Tunisian schools.[29] In 1959, Tunisia achieved independence from France, and a new constitution was drafted for the country and the Constitution of 1959 in the first chapter, provided for the independence of Tunisia as an independent free State and declared Islam as the official religion of the state, and Arabic as the official language. This has also been included in the 2014 constitution issued after the outbreak of the Tunisian revolution on December 17 of the same year.[30]
Tunisia has taken a step ahead of Syria and Lebanon in the field of personal status. Comparing the three countries, we find that they are Arab countries, and religion has a great place in legislation and personal status issues; however, after Tunisia’s independence from France in 1959, Tunisian President Habib Bourekiba carried out reforms in matters of personal status, adopting the civil marriage law and prohibiting polygamy, and the Tunisian constitution in 1959 included in Article (2) that a civil state should be forgotten and in Article (21) that citizens are equal in rights and duties before the law and an adult woman has the right to marry herself without a guardian.[31]
By comparing and studying the status of religion and nationalism among three Arab countries, we can say that Tunisia has achieved an advanced step in the field of personal status, which is the separation of religion from the state, while many Arab countries still take religion as a key element in their constitutions and laws.
Conclusion
This study allowed drawing the following conclusions:
Religion and nationalism are two contributing elements in the drafting of constitutions and laws in the Middle Eastern countries in general and the Arab countries in particular, and this appears in the constitutions of all Arab countries, not only in Syria but in Lebanon and Tunisia.
The place of religion in legislation dates to the origin of the Islamic religion in the Arabian Peninsula and the association of Islam with Arab nationalism since the emergence of the Islamic religion, which explains the place of the Islamic religion and Islamic jurisprudence in legislation.
The political conditions experienced by each country have an important role in legislation, and this is shown in Lebanon, where the Constitution is a special case in terms of the distribution of powers in the country on a religious and sectarian basis. The Lebanese Constitution, which was issued after France declared the establishment of the state of Greater Lebanon in 1926, made the president a Maronite Christian, the prime minister a Sunni Muslim and the speaker of Parliament a Shiite Muslim, This also applies to Syria in its 1930 Constitution, where Arab nationalism had a weak influence as Syria was under the French mandate. The situation continued in the 1950 Constitution, which was drafted as the constitutions of European countries are drafted, but the large number of political parties in that period, including the Muslim Brotherhood party and other parties with a national and religious orientation, contributed to emphasizing the place of Arab nationalism and the Islamic religion in the legislation. Then, the prominent role of nationalism appeared when the Arab Baath Party reached the country’s leadership in 1963.
The arrival of Tunisia as an Arab and Muslim country to the separation of religion from the state greatly puts the role of the historical factor and the political conditions of each country in the drafting of the Constitution and legislation. The French protection of Tunisia continued with the existence of the Bardo Treaty of 1881 for 75 years, and Tunisia was influenced by French culture in the field of legislation and education. We can see this influence in all aspects of life in Tunisia up until today.
The change in the system of government of a particular state needs a long time of amendment in legislation and laws, slowly and thoughtfully, because every country has a historical context, its customs and traditions embodied in the form of laws and provisions that express the culture of this country. For instance, a Muslim religious country that uses Islamic law as a source of legislation and law-making cannot become a secular country within a month or two without entering civil war and bloodshed.
Bibliography
Al-Rubai’e, P. D. R. M. M. (2014). Eshnunna law - The first Sami law before Hammurabi law- (The legal study). Journal of Juridical and Political Science, 3(1). p. 8. https://doi.org/10.55716/jjps.2014.3.1.2
The Ottoman Constitution (23 December1876).(n.d.).</https://iow.eui.eu/wpcontent/uploads/sites/18/2014/05/Brown-01-Ottoman-Constitution.pdf> [Last seen: 29.03.2023].
Yavuz, M. A. (2021). Evolutionary secularisation of the Ottoman law in the nineteenth century: Roots and implications. Eskiyeni, (44), p. 398.
Zhantiev, D. R. (2021). Religious policy of Sultan Abdul-Hamid II in the
Consumer detriment in B2C transactions under consumer law in india: role of consumer courts
Get PDFThe Indian consumer protection law confines itself to Business to Consumer (B2C) transactions and leaves out Business to Business (B2B) transactions from its ambit. This issue has been a subject of litigation in consumer courts over the years. The Supreme Court of India has had to adjudicate the issue a number of times over last three and a half decades. A two Judge Bench of the Supreme Court of India (SCI) in the recent case of Shrikant G. Mantri vs Punjab National Bank again observed that ‘business to business’(B2B) disputes cannot be construed as consumer disputes and claims arising out of the same cannot be entertained under the Consumer Protection Act (CPA). The judgment brings back to focus one of the most contentious is- sues in the consumer protection arena – the ‘commercial purpose’ interpretation. This research paper seeks to explore the rationale for the rigid classification between Business to Business (B2B) and Business to Consumer (B2C) transactions and argues the justification of the said classification under the CPA. It shall trace the development of consumer jurisprudence on this issue through some of the land- mark Judgments of the National Commission (NC) and Supreme Court of India (SCI).
Keywords: Consumer Law, Commercial Purpose, B2B, B2C, Consumer Courts
Introduction
The moment a person is born, he is a consumer of various goods and services. Had it not been for consumer, no business or industry would have ever existed. When any person purchases any goods or avails any service, he does weigh value for money proposition.[1] This value for money consideration exists in the aspects of quality, quantity, price, merchantability etc. Unfortunately, the consumers in India have been a neglected lot. The manufacturers, traders and wholesalers have dominated the marketplace and exploited the consumers to a great extent. Whenever our foreign brethren narrated the rights of consumer on their soil, it always seemed to be more of a childhood fairy tales. [2]The story of “Consumer is King “is more of a fiction than reality.
The Law of Contracts in India was enacted under British colonial rule and it was meant to regulate commercial contracts under the colonial mercantile era. It covered all kinds of contracts and there was no distinction among the types of contracts it applied to. It was based on the principles of equity among the contracting parties who were considered supreme to fashion terms of the contract and bind themselves to it. The British mercantile tradition in 19th century Britain mainly catered to the needs of the British merchants and the industrial class which grew during the industrial revolution. It was also meant to serve the colonial maritime trade of the British merchant fleet. The Indian Contract Act 1872 and the Sales of Goods Act 1930 which were enacted to cover this domain were based on the British laws and the common law doctrines that were evolved in British Courts. These laws covered all kinds of sales of goods and services in India for nearly four decades after interdependence in 1947.
Consumer Protection Act, 1986: The Sunshine Legislation
The Indian economy from the very beginning was a highly regulated one and not much was being thought on the aspect of consumer rights. In fact, State itself was the substantial provider of goods and services. Later on, with the opening up of the economy, the private players too joined the market as providers of various goods and services. The doctrine of caveat emptor, meaning ‘let the buyer beware’ absolved all manufacturers and suppliers from all liabilities all these years to the detriment of consumers. The post emergency period actually led to activism in various spheres of social activity.
After almost four decades of independence, the CPA, 1986 came up in recognition of power asymmetries in terms of bargaining position between consumers and providers of goods and services It has a consumer-friendly design and aimed at resolving consumer disputes by taking care of the issues of cost, time and procedural technicalities involved in conventional court litigation.
B2B and B2C Contracts: The Recognition of Distinction
Importantly, the business laws enacted earlier covered commercial contracts (B2B) as well as Consumer contracts (B2C). Thus, hitherto there was no distinction being made between B2B and B2C contracts from the aspect of seeking remedy for the aggrieved party. Giving similar treatment to both these kinds of contracts was unfair and the apple-orange classification was imperative in context of market realities. The Indian consumer protection law changed the legal basis of B2C contracts and defined Business to Consumer (B2C) transactions and left out Business to Business (B2B) transactions from its ambit.
In order to avail the benefits of this benevolent legislation, the person has to be a ‘consumer’. The act has defined this term and one needs to be falling withing the four corners of this definition to avail the benefits under the act. Also, not falling withing this definition, doesn’t imply a person doesn’t have a remedy at all. Just that, the remedy shall be then available under the conventional civil court. The legislative intent of excluding commercial disputes from the ambit of the legislation is reflected in the definition of the term ‘Consumer’. This law is meant to compensate for consumer detriment caused by unfair methods to consumers but not to compensate business losses in B2B transactions.
Business Disputes and Consumer Disputes: The Blurred Boundaries
Consumer Protection Act is aimed at protecting the interests of consumers and in order to be eligible to claim remedy under CPA, the definition of the term ‘Consumer’ needs to be satisfied. The opening para of the definition of ‘Consumer’ (dealing with goods) prevailing then was:
“consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”[3]
Thus, resale and commercial purpose were two specific exclusions provided under the definition and the people purchasing goods for themselves as end users of goods/services were the ones to be called Consumers under the act.
The Ambassador Case: Pushing for a Re-look
During the early days of CPA, Western India State Motors Vs. Sobhag Mal Meena[4] was one of the very interesting cases that came up for consideration before the National Commission (NCDRC).
The complainant purchased an ambassador car from the respondent manufactured by Hindustan Motors. The car developed engine issues after the first use itself and had to be taken up for repairs. Unfortunately, even after repairs the car wasn’t functional and it became a recurring problem. The complainant had purchased it to run it as a taxi for earning his livelihood. Also, he had availed loan from bank for the same. He approached the State Commission claiming a new car, compensation for loss of profits and mental agony. The NCDRC dismissed the complaint and held that buying of the car for running as a taxi was surely for a commercial purpose and was explicitly excluded from the definition of consumer. Even the plea of livelihood wasn’t entertained by National Commission.
The judgement in this case attracted a lot of public attention and consumer associations were very disappointed with the existing provision. This case of even earning a livelihood to be treated as commercial in nature appeared very unjust. This interpretation was surely to exclude a lot of deserving cases being ruled out. The NCDRC judgement would go on to serve as a ratio decidendi and would henceforth be followed by all subordinate consumer courts. This would exclude a number of consumers from these courts.
Synco Textiles Case: Raising an Interesting Argument
Another case that deserves a mention on this issue is Synco Textiles Pvt. Ltd. Versus Greaves Cotton & Company Ltd (1991)[5]. Synco Textiles which was dealing in edible oil contracted with Greaves Cotton Co. for supply of generating sets (3) at Rs 553,000 for usage in factory. The generating sets supplied were found to be defective and resultantly lead to loss of business for Synco Textiles. It approached the State Commission claiming cost of machines and compensation for loss of business. The claim was dismissed the purpose for generating sets being commercial. Synco Textiles argued that the electricity to be produced from generating sets was for a production purpose and electricity itself was not for sale. It added:
“a fridge, a fan, a water cooler etc. purchased and installed in a residence will not be considered \u27commercial purpose\u27 and hence covered by the Act but, if installed in a factory, a shop, a lawyer\u27s chamber or a doctor\u27s clinic, will become an acquisition for a commercial purpose and hence would not attract the provisions of the Act. The same situation will arise in respect of a car purchased by an officer of a company with the funds provided by his employer, and a car purchased by a company for the use of its officers: the former would not be for a commercial purpose whereas the latter would be for a commercial purpose”
Notably, as the term commercial purpose wasn’t defined in the act. The commission thus resorted to ordinary dictionary meaning and maintained commercial meant ‘large scale’. The National Commission made a distinction between small-scale and large scale. It held Synco Textiles to be ‘large’ and thus was not ‘consumer’ within the act.
Meanwhile, the Department of Consumer Affairs (DCA) was created and it later got elevated to a separate ministry.[6] The Act too got later amended to assimilate the demand of the consumer groups and the following explanation was added to the definition of consumer under Section 2(d) of the Consumer Protection act.
“Explanation: For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.[7]
Thus, the following conditions had to be satisfied to claim benefit of the exception provided in Explanation:
The product or service is exclusively used
The exclusive use is for the purpose of earning livelihood
Such livelihood is earned by means of self-employment.
Corporate Consumers: The Disturbing Trend
The Consumer Protection Act clearly leaves out the commercial purpose from its ambit. However, in order to avail the benefits of this legislation, even the large scale business houses claim it to be case of business for livelihood.[8] It is pertinent to point out that the distinction between large vs small was not spelt out in Synco Textiles case. At what size small became large was left unanswered. Around this time a number of commercial disputes between business having insurance contracts also started filing cases in Consumer Courts alleging deficiency in service on repudiation of insurance contracts. The Insurance Act of 1938 was already in force and the litigation between insurers and those claiming insurance payments would normally have been litigated as contracts in civil Courts subject to the Civil Procedure code and payment of Stamp duty on amounts claimed. Business lawyers started filing cases in Consumer courts which did not require payment of stamp duty and Civil Procedure Code was not applicable in the summary procedure. One could watch cases of crores of rupees of compensation claimed by businesses eating away bulk of the judicial time in NCDRC then located at Indian Oil Bhavan in the early 1990s. Consumers were relegated to the background when such cases were asked to wait for their turn. This also gave rise to the argument as to why businesses were being allowed to come to consumer courts when there were hundreds of civil courts in each state.
The terms livelihood and self-employment being added in the explanation after Synco Textiles case were dealt with elaborately by SCI in the case of Laxmi Engineering Works Vs PSG Industrial Institute. (1995)[9]
Mr. Joshi was a diploma holder in engineering discipline and wanted to start a SSI- Laxmi Engineering Works. It was also registered with the Directorate of Industries, Maharashtra. He contracted with Premier Automobiles for the supply of parts required by them. The machinery procured from PSG Industrial Institute was found to be defective. The Consumer commissions at State and National level held the appellant not to be a consumer. The case finally reached the SCI. It observed that commercial purpose is a question not of law but of fact and needs to be appraised on case-to-case basis. The emphasis is on the purpose and not the value of goods under consideration. It held:
“The several words employed in the explanation, viz., uses them by himself, exclusively for the purpose of earning his livelihood and by means of self-employment, make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.”
Thus, the SCI laid down in this landmark case that commercial purpose is a question of fact in a respective case and needs to be dealt with on a case-to-case basis. It is on account of it that a good deal of subjectivity has crept in the interpretation of commercial purpose.
Commercial Purpose Interpretation: Landmark Judgements
The legislative intent as envisaged under the objectives of the act was to exclude the business-to-business disputes from the domain of CPA. The consumer courts were set up for consumer disputes and not commercial disputes. Interestingly, after the insertion of the Explanation to Section 2(d)(i) under Consumer Protection (Amendment) Act, 1993 some commercial disputes too managed to venture into consumer courts.
The court in case of Cheema Engineering Services v. Rajan Singh (1997)[10] held that in the absence of the definition of ‘Self-employment’ it becomes a matter of available evidence. There is a fine line between manufacture and sale of bricks for a commercial purpose and for earning a livelihood. The court also held \u27He\u27 “includes the members of his family, Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many are matters of evidence.”
Meanwhile, the explanation added in the year 1993 was further enlarged for Services as well in the year 2003. The revised explanation being: “commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”[11]
The Hon’ble apex Court in the case of National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy and Ors [12]held that where farmers have entered into buyback agreementsefor the sale of crops grown from those seeds, it will still not oust them from being consumers under the act. The transaction is means of earning livelihood and not a transaction for resale.
In the case of Kalpavruksha Charitable Trust vs. Toshniwal Brothers (Bombay) Pvt. Ltd. [13] the matter before the court was to adjudicate whether the machines purchased for being used at the Diagnostic Centre by a Charitable Trust were meant for ‘commercial purpose’ or not. The Apex court seconded the decision of the National Commission that machinery was indeed installed for a business purpose and as such, the Trust was not a ‘consumer’.
In Paramount Digital Colour Lab and others vs. AGFA India Private Limited and others[14] This Court, on facts in the said case, found that the appellants therein were unemployed graduates and had bought the said machine for their own utility, personal handling and for their own venture to make a livelihood. This Court further found that this was quite different from a large-scale manufacturing activity carried on for making huge profits. It was, therefore, held that the appellants therein would be taken as ‘consumers’
In the case of C.P Moosa vs. Chowgle Industries Ltd,[15] the appellant purchased EPBAX system for the hotel. It also had a warranty and AMC (annual maintenance contract). The EPBAX system turned out to be a case of service deficiency. The National Commission allowed the contention of the appellant as Consumer.
The utilization of goods/ services for the expansion purposes in scale of operations or supplementing income or which involves an employment of a full-fledged workforce will rule out the claim for availing benefit under the act. Sunil Kohli and Ors. Vs. Purearth Infrastructure Ltd[16] The complainants disposed of their property in Denmark and booked a commercial space in Delhi to start their own business. The appellants here had left their existing employment and commercial space was booked “exclusively for the purpose of earning livelihood by means of self-employment”
In Shrikant G. Mantri versus Punjab National Bank[17], the Commission has come to a finding that the appellant opened a bank account with the respondent, and availed an overdraft service for expansion of business. Also, the overdraft service has been subsequently enhanced as well. The appellant-respondent relationship is thus purely a “business to business” relationship. As such, it would surely come under ‘commercial purpose’ and the argument “exclusively for the purpose of earning livelihood by means of self-employment” doesn’t stand in the given case.
Camel in the Desert Tent: Admissibility of Business Disputes
According to the classical fiction- Camel in the tent, on a cold night, the camel requests the master to allow him to put his head for warmth which the master accepts. Later, the camel request for bringing his neck and legs as well in the tent which is allowed by the master. Finally, the camel gets in the tent completely and as the size of the tent wasn’t that big the master is forced out from the tent.
The story conveys a caution that acts with noble intentions too can lead to unexpected consequences. When the desert storm gets into the camel’s eyes, the result will be obvious. The creeping camel in the tent analogy is the counter view to the admissibility of business disputes under the protective umbrella of CPA. The very idea of a Consumer forum is to provide a forum where the aggrieved consumers can represent cases on their own and the services of an advocate are also not required. With the business houses coming in as consumers, the heavyweight legal practitioners arguing cases for their clients are going to seriously tilt the balance and disturb the equilibrium at consumer courts.
Way Forward:
There are plethora of commercial ventures and start-ups operating today which are in the nature of self-employment and are indeed very much for livelihood. According to the Ministry of Micro, Small & Medium Enterprises (MSME) micro, small and medium enterprises account for more than 7.9 million (As on March, 2022). As per the revised criteria under MSME dated July 2020, Investment in Plant and Machinery or Equipment should be not more than 1 crore, not more than10 crore and not more than 50 crores respectively for Mirco, Small and Medium enterprises.[18]
The MSME is one of the most vibrant sectors of the Indian economy. The contribution of the said sector is immense and next only to agriculture. The sector is significant as it encourages entrepreneurship and generates large employment opportunities at comparatively lower capital cost. It will surely make a lot of sense in including them as ‘Consumers’ under the act irrespective of the amount involved.
The Australian law too adopts a cost criterion to draw the line between consumer and commercial purpose. The value criteria are combined with nature of usage criteria. According to the Australian Competition and Consumer Commission (ACCC) “A person – or a business – will be considered a consumer if:
they purchase goods or services that cost less than 100,000, but they are of a kind ordinarily acquired for domestic, household or personal use or consumption
the goods are a commercial road vehicle or trailer used primarily to transport goods on public roads”[19]
Concluding Remarks:
The SCI in the landmark case of Laxmi engineering Works in 1995 stated that: “It is not the value of the goods that matters but the purpose to which the goods bought are put to” The case being an authority on the subject has been a guiding light for last 3 decades. However, considering the overall scenario it will make good sense if reliance is in fact placed on value as well. The commercial courts are the appropriate forum for resolution of commercial disputes and the consumer courts should confine itself to consumer disputes only. The terms ‘livelihood’ and ‘self-employment’ have not been defined in the act. It is on account of this reason that there is a good deal of uncertainty involved and it depends on the subjective interpretation of the concerned consumer commission.
The major reason attributed to the exclusion of business players from the ambit of the legislation is to discourage the benefits of this beneficial legislation to those who can afford the hefty fees of civil courts and
უძრავი ნივთის ქირავნობის ხელშეკრულებიდან წარმოშობილი გამოსახლების პრობლემები საქართველოში, არსებული რეალობა და გამოწვევები (გარანტის ინსტიტუტის დანერგვის საჭიროება ფრანგული სამართლის მიხედვით)
No full text Police evictions are back – The National Enforcement Bureau under the Ministry of Justice has a new initiative to protect landlords from contractual risks in real estate finance transactions. The idea, which belongs to the Ministry of Justice, will allow legal entities and individuals to register a contract of sale, including lease and tenancy contracts, with the National Enforcement Bureau. The parties can write in the tenancy agreement that the owner will have the opportunity to apply to the enforcement bureau in case of violation of the terms by the tenant and receive enforcement service from it in an expedited manner. As is known, the police eviction from the property no longer exists since 2015, which means that if the person who rented an apartment cannot or does not pay the amount, the landlord must apply to the court instead of the police. What problem did the cancellation of police eviction create, and what will the new initiative of the Ministry of Justice change? Is the mentioned initiative a way to fundamentally solve the problem? The reader will hear the answers to these questions in this article.
Keywords: Rent, Landlord, Eviction
Introduction
In recent years (especially after the Russia-Ukraine war), cases have become more frequent when individuals, including migrants, rent an apartment or commercial space, then do not pay the rent but not leaving the real estate; Even the legal owner does not have the leverage to quickly recover the property, because the so-called after the abolition of the police eviction rule, this is only possible through the courts, and proceedings in the courts are often delayed for years due to procedural bureaucratic procedures. Society agrees that the right to property is paramount; it is the all-encompassing legal dominion over a thing. Ownership gives a person the right to possess, dispose and use. The right to property, as a natural right, is not only the basic basis of human existence but also ensures freedom and adequate realisation of skills and abilities. Also, the property right is the basis of the economic activity of a natural or legal person and the most important element determining it; ensuring the smooth transfer of the property right is considered to be a necessary condition for the effective use of resources and the increase of the universal state.[1]Legal nature of the tenancy agreement
According to the tenancy agreement, the lessor is obliged to transfer to the lessee the specified item for temporary use and to allow him to use this item during the term of the agreement, and the lessee is obliged to pay the lessor the rent agreed in the agreement.[2]
Under the tenancy agreement, the lessor is obliged not only to hand over the object of rent to the lessee (in possession and/or use) but also to maintain the appropriate condition of the object during the entire period of the lease. This condition is cumulative in nature, which means that if both conditions are not fulfilled, then the lessor cannot fulfil the obligation under the tenancy agreement in full, regardless of whether it is expressly stated in the rental agreement or not. The suitability of the subject of the tenancy agreement (determining the suitable condition) must be done in the presence of the lessee. When determining the suitable condition, it is necessary to determine to what extent this or that particular item (the subject of the contract) is suitable (for use) for the purposes provided for in the contract. The purpose of the item is determined by the nature of its normal use[3].
The tenancy agreement represents the number of agreements that provide for the transfer of the item for use. The main right of the lessee is to use the rented object, and the deprivation of this right or the late transfer of the object (rental object), gives him (the lessee) the right to refuse the contract[4].
It seems that the necessary component of the rental is the transfer of the thing (apartment), which in turn entitles the lessee to use it until the lease agreement is terminated or dissolved in accordance with the law to prevent any interference with the use of the item.
Consideration of Vindicatory Claims and Enforcement Issues
A vindictive action is an action by a non-possessor against the wrongful owner for the return of real property[5]. According to § 985 of the German Civil Code, the legal owner can demand the return of the item from the owner. The Supreme Court of Georgia indicated in relation to one of the cases that the vindication claim is satisfied in the presence of three prerequisites: 1) there must be an owner of the thing, 2) there must be an owner, 3) the owner must not have the right to possess the thing[6]. The goal of a vindication lawsuit is for the former owner to recover his property status and get his item back. The owner cannot be accused of negligence, the owner may act more prudently when entering into an agreement for the temporary possession of the thing than when purchasing the thing, and the assumption about the fault of the owner, in its essence, means imposing civil legal responsibility of the owner on himself, which is not allowed[7].
When the contractual partner becomes the illegal owner of the item, both the claim of the item and compensation for damages must be made on the basis of a contractual claim because the party to the contract was obliged to return the item to the owner upon termination of the contractual relationship.[8] Thus, if the thing is with the tenant after the expiration of the contract, the owner can demand the thing from him, both on the basis of a vindication and a contractual claim.
As of today, many civil cases are pending in courts with the request to reclaim the item from illegal ownership; however, due to court congestion, the mentioned lawsuits continue until the last instance, which is a great financial loss for the owner in terms of unacceptable rent, to this is added the protracted enforcement processes, lack of personnel, sometimes during the eviction process, enforcement police from the regions the employees participate, so I believe that the financial interests of the owner will not be protected as much as possible during the long stage of the eviction procedures.
Guarantor as a means of financial security for the lessor
Who is the guarantor, and what is his obligation to the tenant and the lessor? A guarantor, also called a "guarantor" (a natural or legal person - a company) undertakes to pay the rent (as well as any interest in the event of a delay) in the event that the tenant fails to fulfil his obligations. The guarantor must have a fixed income and a stable financial situation; the landlord can even require several guarantors if he considers that the tenant\u27s income and financial situation are unstable (this is the rule in the French Republic).
The tenant is not obliged to have a guarantor when renting an apartment, but the landlord has the right to request it. In France, the presence of a guarantor is more and more required when signing a tenancy agreement. The surety bond must be a written deed between the lessee, the lessor and the guarantor, drawn up by a notary or a lawyer.
It is important for the lessor to know whom to turn to in case the lessee does not pay the rent; as for the guarantor/guarantor, he is obliged to fully understand the scope of his obligation before concluding the transaction, it is necessary to specify its duration in the act of guarantee, since the validity period of the guarantor\u27s obligation depends on the period of completion of the rental agreement, and it is terminated immediately after the end of the current rental agreement, it should also be noted that the lessor and the lessee do not have the right to extend the term of the rental agreement without notifying the guarantor, the said agreement is void in terms of the guarantor\u27s responsibility. According to Article 2297 of the French Civil Code, the guarantor signs a guaranty document specifying the amount of the rent and the conditions for its revision[9]. The reader will be interested in what measures the lessor should apply when the lessee cannot or does not fulfil his obligations; in such a case, the owner must submit the rental agreement to the National Bureau of Enforcement and a letter sent to the guarantor about the existence of the debt (with proof of delivery), after which the bailiff, without examining/evaluating any issue, will make a withholding of the guarantor\u27s proceeds (as in foreclosure/collection), after which the National Enforcement Bureau will transfer the withheld amount/rent to the landlord.
conclusion
In conclusion, it should be said that, as of today, the owner\u27s interests are inadequately protected in this regard and require more guarantees so that they are not neglected, and I also believe that the above-mentioned guarantee mechanism will be highly appreciated in Georgia and Georgian society, and it will not be alienated, since Georgian Legislation already recognises the guarantor institution in banking and credit relations, so I think that if commercial banks require a guarantor in certain cases when granting a loan, why should it not be possible to introduce a guarantor mechanism during the conclusion of a rental agreement. When signing a tenancy agreement, the lessor, in addition to requiring a guarantor, can take certain preventive measures, e.g. check the potential tenant\u27s previous rental history with the previous landlord; this will give the landlord some insight into his new counterparty. At the same time, it is important to understand that the Constitutional Court of Georgia discussed the issue of compliance with the Constitution in the first and second sentences of Article 268 Prima 1 of the Code of Civil Procedure of Georgia and Article 269 of the same Code. These articles allowed the parties, when signing the contract, to define themselves, in case of a dispute, the issue of immediate enforcement of the decision of the court of first instance.
In this case, the winning party had the opportunity to immediately start enforcement proceedings based on the decision of the court of first instance, regardless of the appeal of the decision to a higher court.
According to the decision of the Constitutional Court, the immediate enforcement of the decision of the court of first instance limits the rights of the losing party.
Although the Court recognised the practicality of immediate enforcement in terms of supporting civil settlements and speedy restoration of violated rights, it nevertheless found the adverse effect of immediate enforcement disproportionate to the benefits obtained.
According to the decision of the Constitutional Court, the above-mentioned articles of the Civil Procedure Code of Georgia lose their force as of October 1, 2023[10]. According to the above-mentioned decision, the courts will be overloaded even more, which will prevent the timely restoration of the violated rights of the legal owner, so I believe that the method of solving the problem mentioned in the article is an alternative for this stage.
Bibliography
Research and textbooks:
Chechelashvili, Z. (2020). Contract Law, "Bona Causa" publishing house, vol., Tb. p. 234.
Tumanishvili, G., (2012). Contract drafting technique and obligation-legal normative regulation, Ilia State University, Tb., p. 70.
Collective of authors (2002). Commentary on the Civil Code of Georgia, book four (L. Chanturia, ed.) "Samartali" publishing house. Vol., p. 96.
Mikava, L., (2011). Vindication lawsuit as a legal means of protecting the right to a lawsuit, "Justice and Law" magazine, N1., Vol., Tb. p. 76.
Kochashvili, K. (2015). Ownership and property - fact and right in civil law, "Bona Causa" publishing house, Tb. p. 193.
Zoidze, B., (2003). Georgian civil law, vol., Tb, p. 101.
Foreign Literature:
Posner, R., (2011). Economic analysis of law. 8th edition, Aspen Publishing, p. 4.
Normative material used:
French Civil Code Art. 2297
Court Decisions:
Decisions of the Supreme Court of Georgia on civil, entrepreneurial and bankruptcy cases, N8, 2003.
Decision No. 2/3/1421, 1448, 1451 of the Constitutional Court of Georgia dated April 11, 2023.
Footnotes
[1] Posner, R., (2011). Economic Analysis of Law. 8th edn, Aspen Publishers, p. 4.
[2] Chechelashvili, Z., (2020). Contract Law, "Bona Causa" publishing house, vol., Tb. p. 234.
[3] Tumanishvili, G., (2012). Contract drafting technique and obligation-legal normative regulation, Ilia State University, Tb., p. 70.
[4] Collective of authors (2002). Commentary on the Civil Code of Georgia, book four (L. Chanturia, ed.) "Samartali" publishing house. Vol., p. 96.
[5] Mikava, L., (2011). Vindication lawsuit as a legal means of protecting the right to a lawsuit, "Justice and Law" magazine, N1., Vol., Tb. p. 76.
[6] Decisions of the Supreme Court of Georgia on civil, entrepreneurial and bankruptcy cases, N8, 2003.
[7] Kochashvili, K., (2015). Ownership and property - fact and right in civil law, "Bona Causa" publishing house, Tb. p. 193.
[8] Zoidze, B., (2003). Georgian civil law, vol., Tb, p. 101.
[9] French Civil Code; Art.2297
[10] Decision No. 2/3/1421,1448,1451 of the Constitutional Court of Georgia dated April 11, 2023
DETERMINATION OF INDIVIDUALS’ FREEDOM RANGE RELYING ON THE COMPARATIVE STUDY OF HARM PRINCIPLE IN WESTERN AND ISLAMIC LEGAL SYSTEMS
Get PDFOne of the most respected principles of human societies is the freedom of individuals’ will in fulfilling their desired interests. Therefore, not only individuals but also public authorities cannot prevent the freedom of individuals from benefiting social and economic interests under any pretext. However, in some cases, the freedom of individuals in obtaining the greatest benefit, conflicts with each other, in such a way that the absolute freedom of someone to obtain more benefit, in some cases, makes harm the others. Therefore, it is very important to determine the limits and loopholes of individuals freedom and to establish a balance between it and the harm that may be caused to others due to this freedom. as this determination can have a wide impact on the comprehensive development of a state and the people living on it, Due to this necessity, many schools of thought throughout the history have commented on this issue including Islamic and Western schools of thought. The philosophical thoughts of these two schools, one of which is included in the Islamic rule of "no harm" and the other in the Western rule of "harm," has led this article to investigate the points of commonality and differences between these two rules in the shared interaction between them. This paper finally reached the conclusion that from the perspective of legal science, the freedom of individuals in fulfilling their interests is of special importance to ensure the maximum social welfare of any society and its people. So governments, not only should not hinder people\u27s activities, but also In their management, should first seek to combine the conflicted interests of individuals with each other and if it is not possible, in the second step, they should give priority to fulfilling the interests that have the most public function for the most people in the society.
Keywords: the Islamic principle of “no harm”, the principle of “harm” in Western law, the principle of freedom of action, the limitations of the principle of freedom, duties of the government in adjusting individuals’ freedom.
Introduction
Throughout human history, people have always sought to achieve their goals to have a much better and happier life. In the same direction, many conflicts and quarrels have been taking place between them in determining the priority of their rights. Following the resolution of these conflicts, many schools of thought have expressed their opinion in this regard that the religion and school of thought of Islam, especially the Imami religion on it, based on its legal approach, has tried resolving the conflicts arising from the principle of respect for the freedom of individuals with the principle of necessity not to harm others in practice. In Islam by relying on the principle of “no harm” that says "There is No harm in Islam", no one can harm others without compensation. Hence who cause harm, must be compensated in any way. This principle explains how to resolve the conflict between the clash of legal rights of individuals in the spectrum of the principle of sanctity of action freedom and its limitations.[1]
The importance of dealing with this issue has not gone away from the eyes of Western thinkers so the principle of respecting individual freedom can be seen in the French Declaration of human rights and Citizenship in 1789. Nevertheless, perhaps the first person in the West who addressed this issue after the general statements of Bentham, Jean Locke, and Jean-Jacques Rousseau was John Stuart Mill, who in his book entitled "On Liberty" defined the principle of respecting the freedom of individuals actions and its limitations under the harm principle.[2]
Today, in modern human societies, paying attention to the scope of individuals’ actions freedom to provide maximum social and economic benefits is an important necessity, which is definitely the criterion for determining the personal and general well-being of individuals in a society. Following this reason and philosophy, with the aim of determining the extent of individuals’ freedom in exercising their legal rights and the limitations they face in their normal and professional life, this article, which is based on the comparative study of the Islamic legal system with the western model, tries to explain that There are differences in approach, philosophy, and hopes of the principle of "no harm" in Islamic law and the principle of "harm" in Western law, which is based on the thoughts of the English philosopher John Stuart Mill.[3]
It is worth mentioning that by this comparative study of the Islamic principle “no harm” which is based on many Islamic laws appeared in many Islamic countries, such as Iran, Egypt, and Iraq with the Western principle of “harm” which is based on many Western countries, such as the United States, England, and France that are based to some extent on The intellectual philosophy of John Stuart Mill, the dark spots of action freedom of individuals and its scope will be specified. In such a way that Western humanitarian variables, some of which are based on the principle of "harm" to life, are similar to Islamic human rights, which are based on the Islamic "no harm" principle, however, in some cases, compliance with one of them may lead to the violation of the other.
According to the comparative approach of the present paper in explaining the substantive differences and similarities between the Islamic "no harm" rule and the Western "harm" principle and the legal laws derived from them, it can be said that the present paper can present new points that may be out of sight of Iranian and Western philosophers and writers. Therefore, according to these differences, the present paper, after giving a brief definition of each of these two Islamic and Western principles and their branches, will present a comparative study of the laws derived from the "no harm" rule with the Western laws derived from the "harm" principle and in last part it tries to show how The interaction of these two principles can help us in resolving the people rights conflicts caused by the principle of individuals freedom.
Generalities and concepts
Under this topic, the general introduction of the principle of "harm" in Western law and the principle of "harmless" in Islamic law will be discussed.
1.1 brief Explanation of no harm principle in Western law
John Stuart Mill says in his book "On Liberty" that humanity can only succeed in a society when each member of that society, from his personal point of view, lives a happy life. He says in this regard, everyone is free to create whatever he wants and do whatever he wants. This thought of John Stuart Mill is based on the principle of respecting the freedom of individuals. Therefore, He goes on to say, "Of course, sometimes an elderly woman sitting in her quiet garden conflicts with his/her young neighbor who enjoys listening to music loudly, in such a way that the freedom of the old woman with The action freedom of the young neighbor collides with each other and the freedom of one causes discomfort to the other, which must be solved in some way.
In order to resolve this conflict, he himself accepts that the freedom of individuals’ actions should not cause harm to others. Therefore, he puts the principle of "harm" next to the principle of "freedom". He further says that "sometimes it is possible that Personal freedom of action brings joy to thousands of people, while another person\u27s freedom of action brings joy to fewer people. Suppose a factory or a park will be opened in the area. In order to open a factory or a park, it is necessary to buy people\u27s houses to demolish them for building the factory or park. Everyone is free to sell his house to the government for the construction of the factory or park and he is also free to keep his house which may make someone feel relaxed and happy so that he is not willing to sell it even for billions of dollars. Of course, the opening of a park will make thousands of people happy, and the establishment of a factory will cause economic growth and the general well-being of a nation, and not selling a house will make just fewer people happy. Now, to resolve this conflict, which right has priority? In order to answer this question, he puts the principle of "Efficiency" next to two other principles and a principle will be born "The rule of freedom without harm on more people" and he continues "In the conflict between the freedom of individuals and the principle of harm, the one who can provide more happiness to more people is the first and prior." Therefore, in the realization of his hypothesis for the priority of a right, the element of power lacks validity and the determining criterion is the value and rule of "predominance of satisfaction". It means "the most happiness and satisfaction for the most people". Therefore, the government cannot prohibit people from their freedom just because it is powerful and strong unless its action is also in accordance with the principle of efficiency. The whole speech of John Stuart Mill is related to the conflict between legitimate freedoms, which is different according to the intellectual basis of each philosopher and school of thought. Therefore, no one can kill another, even if he is full of suffering and pain caused by illness, under the pretext that it will bring more happiness to those around him. Because in illegitimate freedoms, no right is defined at all until it can conflict with other rights and freedoms. On the one hand, from his point of view, in the conflict of rights, fundamental rights such as the right to live, take precedence over other rights, even though it includes According to the explanations given by John Stuart Mill in the first chapter of his book "On Liberty". he introduces the principle of harm as follows: "The only and only right that can be granted to society and public authorities to prevent individuals from performing their legitimate actions is the actions that cause illegal harm to others.[4]
1.2 Brief explanation of the harm principle in Islamic law
In Islam, specially Imami jurisprudence and law[5], every person is free to act whatever he wants. This logical result is obtained from adherence to the rule of the sanctity of Muslim property and actions. Relying on this rule, we can reach this conclusion: a person is free to do anything. He can do what he wants and no one can stop him. Therefore, using the principle of “Ibahe”,[6] a Muslim person is allowed to do whatever he wants to do, and due to the respect that his action has, no one from the public authorities or private individuals can prevent his actions.[7] so the Islamic jurists have stated about guaranteeing against the usurper and they say If a person becomes the guarantor of the debt of one of the usurpers against the owner of the property, when there is doubt as to which usurper he has become the guarantor of the debt, it will be the guaranty of the first usurper and his acquittal, and according to him, the other usurpers will also be released.[8] Therefore, in Islamic law, it can also be said that the scope of individuals’ action freedom in exercising their right should be interpreted in such a way as to cause the greatest happiness for the greatest number of people. Therefore, from the point of view of many jurists, public authority can prevent the freedom of persons whose actions cause less happiness for the least people in order to satisfy the general interests of Islamic society and in order to obtain the greatest satisfaction for the greatest number of people. The overall harmony of the principle of respect for the freedom of action of individuals and the Islamic principle of “no harm” with its Western model should not cause doubt that there is no difference between the two, but the main difference between these two rules lies in the explanation of the concepts of "harm" and "non-harm" in this rules. In any case, in general, the common meaning of both rules is as follows: "Everyone is free to do whatever he wants as long as he does not harm others". Therefore, in the following, the interpretation of the concepts hidden in these two principles will be discussed in each of the two Western and Islamic models.
Concepts
Under this topic, the influential concepts in the principle of Western "harm" and Islamic "no harm" will be discussed.
2.1 The concept of "freedom" and "harm" in the Western rule
John Stuart Mill\u27s main goal in his book "On Liberty" is to ensure the freedom of individuals’ actions against the public forces, i.e. the government. In reaching this goal, he tries to identify all the prerequisites that may cause conflicts between the freedom of individuals’ actions and the policy of governments and resolve the conflict between them. Therefore, he believes that people are free to do whatever they want by observing moral principles. Therefore, he who belongs to the "natural rights" school, warned the governments against passing laws in opposition to the principle "free will" of individuals and he considers the laws against the principle of individuals’ actions freedom as invalid. According to what has been said, the basis of the freedom of action of individuals from John Stuart Mill\u27s point of view is the non-contradiction of these freedoms with natural rights, the most important example of which is not to harm others. Of course, from the point of his view, harm has a special meaning that should be clarified. So, harm refers to actions that are directly and intentionally done by a person against the will of another. In addition, such an action is considered a loss for the other person only if it is considered unfair according to the general situation. Therefore, when two boxers enter the field of battle, even though one of them strikes his opponent against the other\u27s will, this blow and the subsequent loss will not be unfair.[9]Because, first of all, the participation in the competition and, as a result, the fatal blow, was with the initial consent of the person, and secondly, it was done in the process of the sports law. Therefore, the main scope of the concept of harm, from the point of view of desire, is based on its opposition to the consent of individuals. In the notes on the theory of desire, it is stated that the truth of the title of loss is actually the creation of a disorderly and complicated situation that puts a person in a worse situation than his previous situation.
On this occasion, John Stuart Mill in the definition of civil responsibility says; "Actions that directly and intentionally cause a person to be in a worse situation than his original situation". Therefore, from his point of view, in order to count an action as a loss to limit the freedom of individuals actions, it must always contain three fundamental elements:
1-The persons freedom of action should directly cause harm to another. 2-Only intentional actions can cause harm. 3- The loss should be unfair. Therefore, he believes that failure to perform an action can never cause harm. So, the comfort and convenience of a person, in the desire not to perform an action, cannot be limited by imposing a loss against another. In this regard, he believes that actions can only be limited on the pretext of harm to others, which causes the civil liability of "tort".[10]
In the scope of his philosophical thought, John Mill believes that non-material and non-physical titles are not included in the conceptual spectrum of "harm", but he includes non-material losses under another title, that is the "offense principle" which can never lead to freedom. hence, sometimes the individuals’ actions freedom may shock or provoke public feelings, which of course, from the point of his view, is necessary for the communal life of humans and is inevitable, and due to the ambiguity in placing such actions under the title of harm and due to the difficulty in their recognition and measurement, it is not possible to limit people\u27s freedom of action with these excuses. So, a person who wears inappropriate clothes in the summer cannot be restricted because he disturbs the psychological security of society. Finally, he comes to the conclusion that the "harm principle" only prevents actions that directly harm the material assets of others. While the "offense principle" is not reprehensible and cannot be used as a reason to limit the freedom of action of individuals.
2.2 The concept of "freedom" and "harm" in Islamic law
In Islamic jurisprudence books, the sanctity of the freedom of individuals’ actions is mentioned and emphasized, except where something lawful becomes forbidden or something forbidden becomes lawful. Therefore, the freedom of individuals’ actions in Islamic law is a divine value, and of course, one of its most important limits is not to harm others (Koleini, 1986, 292/25).
From a jurisprudential point of view, there are many cases where the action of individuals is a violation of the "offense principle", but the freedom of individuals’ actions cannot be hindered by the ruling of Sharia. For example, in the buying and selling of ancient artifacts by the people who find them, although selling them is reprehensible and violates norms until it is not prohibited by the competent authority of the Islamic government, the freedom of action of people cannot be prevented. Therefore, the determining source of the concept of forbidden is not the extra-governmental laws of natural rights, but the rules that the righteous Islamic government imposes. So, the scope of people\u27s freedom of action in Islam is based on divine laws and according to the opinion of vali Faqih and Sharia ruler, the most important scope of which is not to harm others.[11]
By referring to the principles governing Islamic rational sciences, the concept of harm is included in three formats. 1- Sometimes the concept of loss is hidden in the creation of emotional deficiency in a person. For example, a person prevents another from participating in the university entrance exam due to achieving his goals, and this causes him to be deprived of graduate education. In fact, when someone is admitted to the university, this is considered a personal perfection for him and now that he is not admitted to the university, he has suffered a loss. 2- Sometimes the harm is due to the suitability of an action to the human soul, which also varies according to the suitability of humans. Like listening to loud music, sometimes it is pleasant for a person because it gives him sensual pleasure. However, the same act causes him emotional resentment due to another person\u27s emotional compatibility with it 3- In some cases, the concept of harm lies in the abundance and scarcity of praise and condemnation from others. For example, the exercise of the right by a person who conflicts with the exercise of the right by another person, if it is condemned by the general society, this issue is a sign of the realization of the title of loss against the entitled person. For example, when a person exercises his right to build a cattle farm in a residential area. Considering that this act is ugly from the point of view of the public, therefore, the identification of the ugly by the public can also be considered as an indication of the harmfulness of that act.[12]
Contrary to the perception of the concept of harm in the first meaning, which is the same for everyone, harm in the other two concepts varies according to people\u27s tastes, so the concept of harm in the first meaning, which is certain for everyone, can certainly be a valid limit for the freedom of individuals actions.[13]
However, harm in its second and third meaning only has a meaning and limitation for the freedom of action of others if it is understood through general reason and not partial reason. for example; Suppose that two rights are in conflict with each other, preventing an action from being done by another contrary action to it, a person will suffer a loss only when his fundamental rights, which are proven by general and universal reason, are violated. Therefore, according to the "no harm" rule, by applying it, contrary to the western "harm" rule, rather than seeking to make people happy, we are seeking to prevent them from enduring suffering actions, according to common sense and not false excuses. Therefore, an elderly person sitting by the garden of his house brings him sensual perfection (joyfulness), if it is said that listening to loud music by a young neighbor prevents this sensual perfection in him - harm in the first sense that prevents freedom People\u27s actions- it is not impossible to prevent his actions. Hence, in the conflict between two rights, when one is based on a general rule of reason and the other is based on a partial rule of reason (such as people\u27s taste), the first right takes precedence. Hence, in the ruling of many Islamic jurists, it has been stated that, in order to observe social justice as a general benefit, houses should be destroyed on the way to the construction of factories, highways, or parks, even if their owners are not satisfied.
On the other hand, the image of the concept of harm in Islam is not only a momentary matter, but the continuity of time is very important in its recognition. Therefore, no one believes that preventing people from committing suicide will limit their freedom and causes harm to them. Because even though something may be considered a harm at the outset of the matter, but considering its consequences, it is not only not a harm, but it will also have benefits. Hence, it is not possible to prevent a person who is engaged in scientific experiments on his private property on the pretext of being harmful. Because this initial loss is not a loss at all compared to th