By J Schacht
ISBN-10: 0198253575
ISBN-13: 9780198253570
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Additional resources for Origins of Muhammadan Jurisprudence
Example text
The preparatory materials ought not to entirely dominate the decision-making. 7. Division of Power. A division of power promotes the legal certainty, the rights, the free majority decisions and the political representation of the interests of the electorate. A monopoly of power is always a threat to freedom of an individual. Not even the parliament should have the whole public power. Independent courts, relatively independent civil service, the division of power between the state and municipalities etc.
The process of in which a provision customarily loses its validity takes some time. At first, the courts are inclined to frequently “forget” the provision, without entirely precluding the legal possibility of its application in other cases. They would perhaps call it “half-valid”, if the legal language permitted them to do so. Instead, one calls the provision “obsolete”. Later, however, one may find that no reason any longer justifies such an uncertainty. The provision has definitively lost validity through desuetudo.
To make the choice, the court may consider the content of the contract, the situation at the time it was concluded, later facts and “other circumstances”. Weighing and balancing of all this requires a value judgment. 7 Obsolete Laws and Desuetudo In some cases, one must answer the question whether a certain statutory provision is valid or applicable at all. , that A produces sausages containing some controversial chemicals, and does not ask proper authorities for approval according to the law. B buys a sausage.