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Aniceto Masferrer

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Aniceto Masferrer and Clive Walker

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Edited by Aniceto Masferrer and Clive Walker

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Counter-Terrorism, Human Rights and the Rule of Law

Crossing Legal Boundaries in Defence of the State

Edited by Aniceto Masferrer and Clive Walker

The initial responses to 9/11 engaged categorical questions about ‘war’, ‘terrorism’, and ‘crime’. Now the implementation of counter-terrorism law is infused with dichotomies – typically depicted as the struggle between security and human rights, but explored more exactingly in this book as traversing boundaries around the roles of lawyers, courts, and crimes; the relationships between police, military, and security agencies; and the interplay of international and national enforcement. The contributors to this book explore how developments in counter-terrorism have resulted in pressures to cross important ethical, legal and organizational boundaries. They identify new tensions and critique the often unwanted outcomes within common law, civil law, and international legal systems.
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Aniceto Masferrer and Juan A. Obarrio

The chapter explains how in the Spanish territories, the ius commune, due to its imperium rationis, turned into the most appropriate means to supply the gaps and contradictions of the iura propia. Both scholarly works and legal practice shows the relevant role of the ius commune throughout Western history. Iura propria fell short in providing legal rules to be used by judges in adjudicating legal disputes, and judges resorted to the communis opinio doctorum, looking for the rules which both filled in the gaps of the ius proprium and conferred legal certainty to the system. However, the reception of the ius commune in civil law jurisdictions did not occur without resistance and obstacles. The chapter addresses these obstacles (the ambiguous attitude of the kings, reluctance to adopt the Roman-canonic procedure, the principle of literal interpretation of legal dispositions, etc), and describes how the status of the ius commune in various Spanish systems varied. Whereas some Spanish kingdoms never acknowledged explicitly the validity of ius commune as subsidiary (Castile, Aragon), in the other kingdoms (Catalonia, Valencia, Majorca, Navarre) the ius commune met similar resistance (as in Castile or Aragón), but eventually it was explicitly admitted either as subsidiary law (Valencia, Majorca, Navarre) or as an integrative part of the legal system (Catalonia). The chapter maintains that the resort to ius commune as subsidiary law sought to prevent the compulsory use of Royal legislation in the context of political absolutism and explains why Castile, a territory governed by absolutist monarchs, never took this step.

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Aniceto Masferrer, Kjell Å. Modéer and Olivier Moréteau

It would be wrong to think that the comparative approach to law started in the 19th century. In Antiquity, for example, Plato compared the Nomoi of the Greek city states, and Aristotle studied the different forms of state and their influence on the laws.

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Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer

The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.