What are some exceptions to the principle of &quot;lex specialis&quot; that aren&#39;t &quot;lex superior&quot; and &quot;lex posterior&quot;? The legal principle of lex specialis is that the special law derogates the general law in case of inconsistency. The primary alternatives to it are: Lex superior - the effect originating from the highest priority legal source (e.g. constitutions) derogates. Lex posterior - the effect originating from the most recently enacted legislation derogates. So, a future general law can override the current special law. Are there any other principles whereby a past general law can override the present special law, even if it's not derived from a superior legal instrument such as a constitution?
One of the principles of statutory interpretation in common law countries is that statutes are not deemed to displace common law rules unless this intent is clearly indicated by the statute. This is often phrased in the form: &quot;a statute in derogation of the common law is to be strictly construed.&quot; This preserves an inferior and older law of general application, in favor of a newer, superior in authority, and more specific law. For example, a law regarding federal government employee life insurance policy beneficiaries does not expressly provide that the designation of someone as a beneficiary is invalidated in the event that the beneficiary murders the person insured by the life insurance policy. Notwithstanding the language in the statute that says that a designated beneficiary of the life insurance policy is entitled to the benefits upon the insured's death, the courts have held that the common law rule that a beneficiary of a life insurance policy who kills the insured is not entitled to the benefits of the policy overrides the express statutory statement that the designated beneficiary of a federal government employee life insurance policy is entitled to the benefits when the insured dies. This result was reached based upon the rule that the common law is not displaced by a statute unless an intent to do so is clearly indicated by the statute. There may be other exceptions to the rules of lex specialis, lex superior, and lex posterior, but this one is the first that came to mind. Some states, such as Utah, however, have overruled this interpretative provision. Utah Code § 68-3-2(1) states that: The rule of the common law that a statute in derogation of the common law is to be strictly construed does not apply to the Utah Code.
You are correct that "narrow tailoring" and "least restrictive means" are often treated as synonyms.1 For example, Professor Volokh describes narrow tailoring as having four components: advancement of the compelling governmental interest, no over-inclusiveness, the least restrictive alternative, and no under-inclusiveness.2 However, he says that the first "three components are closely related, and all of them could be subsumed within the 'least restrictive alternative' inquiry."3 The Supreme Court has sometimes equated strict scrutiny with the "least restrictive alternative" formulation, saying, "Unquestionably we have held that a government practice or statute which restricts 'fundamental rights' or which contains 'suspect classifications' is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available."4 The court has also distinguished between narrow tailoring and a "least restrictive alternative" test, at least with respect to laws that infringe on speech: "Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so."5. The dissent in that same case described the majority's view as a "serious distortion of the narrow tailoring requirement", and said, "Our cases have not, as the majority asserts, 'clearly' rejected a less-restrictive-alternative test. [...] The Court's past concern for the extent to which a regulation burdens speech more than would a satisfactory alternative is noticeably absent from today's decision. The majority requires only that government show that its interest cannot be served as effectively without the challenged restriction."6. Some statutes remove any ambiguity, prescribing the "least restrictive alternative" test.7. In summary, certain areas of law (free speech, religious freedoms, affirmative action) have their own idiosyncratic treatment of strict scrutiny, narrow tailoring, and the "least restrictive alternative" test. It is always best to read the particular line of case law in the field you are interested in to see exactly what formula the court has established in that area. 1. Winkler, Adam, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. Vanderbilt Law Review, Vol. 59, p. 793, 2006; UCLA School of Law Research Paper No. 06-14. At 800: "Narrow tailoring requires that the law capture within its reach no more activity (or less) than is necessary to advance those compelling ends. An alternative phrasing is that the law must be the “least restrictive alternative” available to pursue those ends." 2. Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417 (1997). 3. Ibid. 4. Regents of Univ. of California v. Bakke 438 U.S. 265 (1978) (Opinion of Justice Brennan, Justice White, Justice Marshall, and Justice Blackmun, concurring in the judgment in part and dissenting in part.) 5. Ward v. Rock Against Racism 491 U.S. 781 (1989) 6. Ibid. 7. The Religious Freedom Restoration Act, implemented in part in 42 U.S.C. §2000bb-1(b): "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."
That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., &quot;The defendant refused to waive his Sixth Amendment right to a speedy trial.&quot; In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this.
The Wikipedia article Rule of law favorably quotes the Encyclopedia Britannica defining the rule as: the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power. In general the rule of law requires that written laws, as interpreted by the courts, be applied to all, and there there be no special exemptions that apply only to particular persons, nor special laws that only affect some people or groups. The rule is a statement of an ideal which is not always achieved. &quot;when people say that judges uphold the rule of law&quot; that means that the judge applies the appropriate previously enacted law, and does not make a decision based on the judge's own personal view of what the law ought to be. This includes the rule of Stare decesis that things once decided shall normally remain decided, that existing rules are not arbitrarily reversed or altered by a court. This would include the judge not deciding a case or issue on the basis of personal bias or prejudice, but it means more than that. It means that the law should not,change depend on what judge presides over a case. Again, this is an ideal not always achieved.
1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged.
The literal translation of nulidad de pleno derecho is &quot;null act of full right&quot; or more ideomatically &quot;fully null&quot; but the phrase of equivalent meaning in English language legal terminology is void ab initio, literally &quot;invalid from the beginning&quot;. This is an act that, because it was particularly seriously defective, should not produce any effect and, if it does, can be annulled at any time without the correction of the defect or the passage of time being opposed. ex tunc means in a legal context, &quot;from the beginning, from the outset. Used to describe certain legal effects that can affect situations prior to this point in time and therefore can affect past actions.&quot; It is more commonly used in canon law, Italian law and the law of other countries that speak Romance languages, than in the English speaking world. You are correct that something that is nulidad de pleno derecho does cause effects ex tunc. The phase ex tunc is rarely used in English terminology although the related term, nunc pro tunc which means having retroactive effect to some relevant date (often the date of the filing of a motion) is commonly used in cases where something is given effect retroactively, but not where something is invalidated retroactively, in which case the term void ab initio is used in English jurisprudence instead. If an action is nulidad de pleno derecho then any legal effect it was given is treated as though it never happened and the remedy of restitution is often available to undo changes in position that occurred as a result of a void act. Some of the common situations where this might come up are (1) an annulment of a marriage of someone who was not eligible to marry (for example, due to an existing marriage or lack of age to marry or mental incapacity) as opposed to a divorce, (2) a determination that a court order or actions are void because the court lacked subject matter jurisdiction to consider the matters before it, or (3) a determination that a deed to property and subsequent deeds in the chain of title derived from it are void because there was some serious defect in the original deed (e.g. it was a &quot;wild deed&quot; purporting to transfer say, the Brooklyn Bridge from someone who never owned it in the first place).
You can use academic sources when arguing in court if you like, but be aware of the following: Academic texts are not primary sources of law in Jamaica. What is in them may be persuasive but does not bind a court in the same way as statute law or case law. Sometimes, it's appropriate to cite works of legal scholarship to flesh out an argument. If the book contains a succinctly-phrased statement that matches what you want to prove, but prior case law isn't quite as neatly applicable, then you might cite both - subject to points below. Citing the book alone is weaker. At other times, when there is authority on both sides of a point, you might find academic argument tipping the balance, but again not to be used in isolation. Whether a text is persuasive may not be obvious, especially for older works. Sometimes, perhaps often, the law has changed since the book was published. Don't assume that an old book by a famous author will automatically be revered. You can check to see if newer books say something different from the older one, and in general start your search looking backwards from now in order to identify the current state of the law. It is more common these days to see references to current editions of textbooks than comparatively ancient authorities, no matter how illustrious the name of Blackstone might be. If a point of law is not actually contested, then there is no need to argue about it. It can form part of the background material that is agreed on between the parties. Basic principles of the way contracts work don't need elaboration or authority. Judges would prefer to have you limit the number and range of authorities you bring in, because they only have so much time in their day and they don't want to struggle through a lot of unnecessary background reading. In a skeleton argument, the strong preference is for only one principal authority to be mentioned in support of each point of law. You can mention a recent decisive case rather than reciting the entire history of case-law on the topic, and you don't need to include cases where a well-understood precedent was applied without difficulty. It may be that a textbook brings you to the relevant statute or judgement but then that is what you need to cite, not the textbook itself, especially if it simply quotes or restates what is found in the primary material. For filing court documents in general, pay close attention to the Civil Procedure Rules and the Practice Directions, including PD No. 8 of 2020 on the format of the judge's bundle. If the judge is annoyed enough about non-compliance with the court's rules about submissions, then various sanctions are available to them. For example, they can refuse costs on the legal research that led to the preparation of the submission. In correspondence, which I think you allude to, you can be more free than when dealing with the judge's bundle. In a letter to the opposing party you can certainly bring in additional references that you think would be helpful to you as a matter of rhetoric and argumentation. Do note that doesn't mean it is a good idea to make correspondence too aggressive or lengthy. For one thing, a judge can end up reviewing the correspondence and will notice whether or not you are making a good-faith effort to resolve the matter, or at least identify the salient issues to bring to the court.
A legal paper published in a peer reviewed journal is not science. Universities have faculties of Law and Science because they are not the same thing. while both disciplines use the terms ‘evidence’, ‘fact’ and ‘proof’ they do not mean the same thing. Notwithstanding, the law has already disproved science - see the Catholic Church v Galileo and the Heliocentric model of the Solar System. Yet NASA still uses it to send spacecraft to Pluto - possibly because engineering is neither science nor law.