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Themes and Theories$
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Rosalyn Higgins

Print publication date: 2009

Print ISBN-13: 9780198262350

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198262350.001.0001

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The Legal Bases of Jurisdiction

The Legal Bases of Jurisdiction

(p.799) 7.4 The Legal Bases of Jurisdiction
Themes and Theories

Rosalyn Higgins Dbe Qc

Oxford University Press

Jurisdiction is concerned with the allocation of competences between states. There is need for a theoretical understanding of jurisdiction that allows a clear sight of how all these aspects — and very many more — fit together, and how they interrelate. This understanding begins by distinguishing the competence to prescribe law from the competence to apply law. The prescription of law is evidenced primarily by legislation, but also by other regulatory and common law processes within the state. The application of law says nothing about the origin of the law (it may be the law of the forum or another law) — rather it is about the authority to apply law directly to specific persons, events, or property. The most familiar example will be the judicial process. The authority of a state to prescribe law is a matter of public international law. This chapter also discusses the concept of territorial jurisdiction, the so-called protective principle basis of jurisdiction, and the passive personality principle.

Keywords:   jurisdiction, international law, territorial jurisdiction, protective principle, passive personality principle, judicial process, competence, prescription of law

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