WorldWideScience

Sample records for case law jurisprudence

  1. Medical experiments on persons with special needs, a comparative study of Islamic jurisprudence vs. Arab laws: UAE law as case study.

    Science.gov (United States)

    Hammad, Hamza Abed Al-Karim

    2014-01-01

    This article is a comparative study of medical experiments on persons with special needs in Islamic jurisprudence and Arab laws; United Arab Emirates (UAE) law as case study. The current study adopts a comparative analytical and descriptive approach. The conclusion of this study points out that the Convention on the Rights of Persons with Special Needs, ratified by a number of Arab States, including the United Arab Emirates, approves conducting medical experiments on persons with special needs, subject to their free consent. As a result of ratifying this Convention, a number of special laws were enacted to be enforced in the United Arab Emirates. On the other hand, this issue is controversial from an Islamic jurisprudence point of view. One group of jurisprudents permits conducting these experimentations if they are designed to treat the person involved, and prohibits such experimentations for scientific advancement. Other jurisprudents permit conducting medical experimentations on persons with special needs, whether the purpose of such experimentations is treatment of the disabled or achieving scientific advancement. The opinion of this group is consistent with the International Convention and the Arab laws in this respect. However, neither the Convention nor the Arab laws regulate this matter by specific and comprehensive conditions, as addressed by some contemporary scholars. It is recommended that the Convention and the Arab laws adopt these conditions. Additionally, the Convention does not state whether the experimentations may be conducted for the interest of the person with disability or for the purpose of scientific advancement. The text of the Convention is unclear and therefore requires further illumination.

  2. Interstitial Jurisprudence Illustrated in Teaching Criminal Law

    Science.gov (United States)

    Funk, David A.

    1975-01-01

    The incorporation of criminal law theory into the first-year criminal law course is discussed as an example of adding the jurisprudence of specific subject matters to standard courses. Jurisprudential issues appropriate for study are suggested along with guidelines for teaching techniques, selection of materials, and use of class time. (JT)

  3. Discursos de ódio em redes sociais: jurisprudência brasileira Hate speech in social networks: Brazilian case law

    Directory of Open Access Journals (Sweden)

    Rosane Leal da Silva

    2011-12-01

    Full Text Available Tendo-se em vista a crescente popularização de redes de relacionamento virtual como o Orkut, a facilidade de divulgação de conteúdos prejudiciais nesses meios, e a necessidade de o Direito adaptar-se às demandas da Era da Informação, o presente artigo busca elucidar se e como o sistema judiciário brasileiro julga litígios envolvendo discursos de ódio publicados em redes sociais. De forma a cumprir esse objetivo, utilizou-se de abordagem quantitativa (coleta sistemática de dados jurisprudenciais nos sítios de tribunais, tendo por filtro a palavra "Orkut" e qualitativa (análise das jurisprudências pertinentes. Como conclusão, verificou-se que o Poder Judiciário do Brasil, embora receba poucas demandas sobre discursos intolerantes veiculados em rede virtual, posiciona-se de forma a privilegiar a dignidade das pessoas que interagem no ciberespaço.Considering the growing popularization of virtual social networks like Orkut, the easiness to spread harmful content in this media, and the need of law to adapt itself to the demands of the "information age", the present paper aims to elucidate whether and how the Brazilian Judicial System judges cases involving hate speech published in social networks. In order to fulfill this objective, two approaches have been used: one quantitative (systemic gathering of jurisprudential data in the tribunals'sites, having for filter the word "Orkut" and the other, qualitative (analysis of relevant case law. In conclusion, it was verified that the Judiciary in Brazil, although it receives few complaints about intolerant discourses conveyed in virtual network, it is positioned so as to privilege the dignity of people interacting in cyberspace.

  4. Therapeutic Jurisprudence in Health Research: Enlisting Legal Theory as a Methodological Guide in an Interdisciplinary Case Study of Mental Health and Criminal Law.

    Science.gov (United States)

    Ferrazzi, Priscilla; Krupa, Terry

    2015-09-01

    Studies that seek to understand and improve health care systems benefit from qualitative methods that employ theory to add depth, complexity, and context to analysis. Theories used in health research typically emerge from social science, but these can be inadequate for studying complex health systems. Mental health rehabilitation programs for criminal courts are complicated by their integration within the criminal justice system and by their dual health-and-justice objectives. In a qualitative multiple case study exploring the potential for these mental health court programs in Arctic communities, we assess whether a legal theory, known as therapeutic jurisprudence, functions as a useful methodological theory. Therapeutic jurisprudence, recruited across discipline boundaries, succeeds in guiding our qualitative inquiry at the complex intersection of mental health care and criminal law by providing a framework foundation for directing the study's research questions and the related propositions that focus our analysis.

  5. Therapeutic Jurisprudence in Health Research: Enlisting Legal Theory as a Methodological Guide in an Interdisciplinary Case Study of Mental Health and Criminal Law.

    Science.gov (United States)

    Ferrazzi, Priscilla; Krupa, Terry

    2015-09-01

    Studies that seek to understand and improve health care systems benefit from qualitative methods that employ theory to add depth, complexity, and context to analysis. Theories used in health research typically emerge from social science, but these can be inadequate for studying complex health systems. Mental health rehabilitation programs for criminal courts are complicated by their integration within the criminal justice system and by their dual health-and-justice objectives. In a qualitative multiple case study exploring the potential for these mental health court programs in Arctic communities, we assess whether a legal theory, known as therapeutic jurisprudence, functions as a useful methodological theory. Therapeutic jurisprudence, recruited across discipline boundaries, succeeds in guiding our qualitative inquiry at the complex intersection of mental health care and criminal law by providing a framework foundation for directing the study's research questions and the related propositions that focus our analysis. PMID:25428910

  6. Private Law, Public Consequences, And Virtue Jurisprudence

    Directory of Open Access Journals (Sweden)

    Chapin F. Cimino

    2009-04-01

    Full Text Available Everything we know about legal theory is wrong. Or at least, this is the claim made by Colin Farrelly and Lawrence Solum in their important new anthology, Virtue Jurisprudence. Specifically, Farrelly and Solum tell us that we are arguing over the wrong question. The wrong question is whether normative legal theory should rest on either law and economic notions of welfare and efficiency or on rights-based notions of liberty and equality. To Farrelly and Solum, the answer to this question is neither.

  7. Law as "Communicative Praxis": Toward a Rhetorical Jurisprudence.

    Science.gov (United States)

    Klinger, Geoffrey D.

    1994-01-01

    Argues that the "analytic turn" in jurisprudence has undesirable consequences for both the theory and practice of law. Argues that a rhetorical view of the law sees law as an exercise in communicative praxis, reshaping the theoretical and practical contours of the law, changing patterns of communication, and opening discursive space both within…

  8. On the integration of public law jurisprudence

    Institute of Scientific and Technical Information of China (English)

    YUAN Shuhong

    2006-01-01

    After two to three hundred years of development,modern public laws have become more and more important,mature and integrated especially since the 20th century.Traditionally,the dispersive and overlapping public law researches were grounded on the sectional public laws like constitutional law,administrative law,criminal law,procedural law,international public law,etc.Nevertheless,with all-around emergence of public law,the traditional research method can no longer adapt to the development needs of the modern public law.Therefore,it is quite necessary for us to create a kind of moderate unified public law between the laws and the sectional public laws,so as to do comprehensive,integrated and systematic researches on various sectional public laws.Based on the indepth argumentation about the necessity of developing unified public laws,this paper further puts forward that,to discuss an all-encompassing way about the main problems of creating the unified public laws and expect to fill the gap with it,the unified public law should define its study objectives mainly focused on the contents of integrated public law criteria,common public law features and general public law rules and so on;form its theoretical basis on the line of the relations between public power and the citizen privilege;establish its category structure found on the concept of public power and the derivative core and basic categories;and build up the disciplinary system based on the systematic integrity of the public law research results.

  9. The Proportionality and Solidarity Principles and Their Impact on Privacy Laws in German Jurisprudence

    Directory of Open Access Journals (Sweden)

    Klaus Schmidt

    2016-06-01

    Full Text Available Privacy laws and the use of information technology that guarantee confidentiality and information integrity are components of an individual’s rights in German jurisprudence. The protection of a person’s identity, information, ideas, feelings, emotions and particularly the way to communicate them is considered essential to human dignity. Extensive studies in these areas has made this protection a central pillar of law-related research in Germany.

  10. [Bioethical language in the law and jurisprudence about bioethical problems].

    Science.gov (United States)

    Corral García, Eduardo

    2013-01-01

    The impact is analyzed that on the Spanish Law relative to questions bioethics--as the Law on artificial reproduction, the Law of biomedical investigation, and the Law on sexual and reproductive health--can have the conception of human embryo enunciated by the Court of Justice of the European Union in his judgment of October 18, 2011, considering it to be any ovum fertilized with independence of the degree of reached development. PMID:24206251

  11. Mapping Criminal Law: Blackstone and the Categories of English Jurisprudence

    OpenAIRE

    Lieberman, David

    2002-01-01

    "Mapping Criminal Law" examines attempts by 18th-century common lawyers to identify and delineate criminal law as a discrete and specific component of the legal order, distinguishing the legal categories of 'criminal' from 'civil' and, in this setting, the related distinction between 'public' and 'private'. The discussion focuses on Blackstone's treatment of these matters in the Commentaries: examining the native and foreign legal materials he utilized to assemble a category of law covering w...

  12. State of the nation: therapeutic jurisprudence and the evolution of the right of self-determination in international law.

    Science.gov (United States)

    Cooper, J M

    1999-01-01

    This article expands the scope of the therapeutic jurisprudence enterprise and applies the concept at a collective global level. The right of self-determination, arguably the most important and certainly the most controversial part of international law, is examined through the lens of therapeutic jurisprudence. By detailing the manner in which nations move towards their goal of statehood, this article opens up dialogue about collective healing, shared memory and alternative approaches to autonomy. The article poses the question of whether groups of people can share in common delusions, forms of folie a gens.

  13. Discrimination, developmental science, and the law: addressing dramatic shifts in civil rights jurisprudence.

    Science.gov (United States)

    Levesque, Roger J R

    2014-01-01

    The civil rights movement fostered dramatic shifts in legal responses to discrimination based on race, gender, and a host of other group characteristics. The legal system now evinces yet another dramatic shift, as it moves from considering difference to focusing on neutrality, from efforts that seek to counter subjugation to those that adopt a "color-blind" approach. The shifting approach already has reached laws regulating responses to the group that spurred massive civil rights reform: minority youth. The shift requires a different body of empirical evidence to address it and a new look at equality jurisprudence. This article notes the need to turn to the current understanding of prejudice and discrimination for guidance, and uses, as illustration, developmental science to shed light on the development, manifestation, and alleviation of invidious discrimination. Using that understanding, the analysis details how the legal system can benefit from that research and better address discrimination in light of dramatic changes in law. The article articulates the need to address discrimination by recognizing and enlisting the law's inculcative powers through multiple sites of inculcation, ranging from families, schools, health and justice systems to religious and community groups. The discussion concludes with brief suggestions for reform benefiting from understandings of prejudice and its expression.

  14. Case - Case-Law - Law

    DEFF Research Database (Denmark)

    Sadl, Urska

    2013-01-01

    Reasoning of the Court of Justice of the European Union – Constr uction of arguments in the case-law of the Court – Citation technique – The use of formulas to transform case-law into ‘law’ – ‘Formulaic style’ – European citizenship as a fundamental status – Ruiz Zambrano – Reasoning from...

  15. Escassez de recursos, custos dos direitos e reserva do possível na jurisprudência do STF Resource limitation, cost of rights and the 'under reserve of the possibilities' clause in the Brazilian Federal Supreme Court case-law

    Directory of Open Access Journals (Sweden)

    Daniel Wei Liang Wang

    2008-12-01

    Full Text Available Este artigo analisa os temas da escassez de recursos, custos dos direitos e cláusula de reserva do possível na jurisprudência do Supremo Tribunal Federal brasileiro. Por meio do estudo dessas decisões, procuro, primeiramente, descobrir em que tipo de matéria esses temas são comumente debatidos nos julgamentos do Supremo Tribunal Federal. Em um segundo momento, procuro entender a forma como o tribunal trata esses temas em sua jurisprudência e os critérios utilizados em suas análises. Por fim, busco examinar se a análise jurídica dos ministros leva em consideração preocupações relativas às conseqüências econômicas e distributivas das decisões. A pesquisa de acórdãos foi feita com base nestes três temas: direito à saúde, direito à educação e intervenção federal por não pagamento de precatórios. Em uma primeira fase, analiso o tratamento dado aos custos dos direitos, à reserva do possível e à escassez de recursos dentro de cada um desses temas. E, em um segundo momento, cruzo os resultados obtidos em cada tema para mostrar as diferenças de tratamento.This article presents an analysis the concepts of costs of rights, resource limitation and the "under reserve of the possibilities" clause are featured in the Brazilian Federal Supreme Court case-law. By analyzing Brazilian Supreme Court's decisions, my aim is to verify, firstly, in which subjects these themes appear more frequently. Secondly, I intend to assess how this court deals with the referred themes in its case law and what are the criteria applied. finally, I attempt to examine if the judges decision making process takes into consideration economic and distributive consequences. The survey on court decisions was based on three categories of legal discussions: right to health, right to education, and federal intervention for the non-payment of judicial debts. Initially, I examine the treatment received by the concepts of costs of rights, resource limitation

  16. Case law

    International Nuclear Information System (INIS)

    This section treats of the two following case laws: Slovak Republic: Further developments in cases related to the challenge by Greenpeace Slovakia to the Mochovce nuclear power plant; United States: Judgment of the Nuclear Regulatory Commission denying requests from petitioners to suspend final reactor licensing decisions pending the issuance of a final determination of reasonable assurance of permanent disposal of spent fuel

  17. Case law

    International Nuclear Information System (INIS)

    This section gathers the following case laws: 1 - Canada: Judicial review of Darlington new nuclear power plant project; Appeal decision upholding criminal convictions related to attempt to export nuclear-related dual-use items to Iran: Her Majesty the Queen V. Yadegari; 2 - European Commission: Greenland cases; 3 - France: Chernobyl accident - decision of dismissal of the Court of Appeal of Paris; 4 - Slovak Republic: Aarhus Convention compliance update; 5 - United States: Judgement of a US court of appeals upholding the NRC's dismissal of challenges to the renewal of the operating licence for Oyster Creek Nuclear Generating Station; reexamination of the project of high-level waste disposal site at Yucca Mountain

  18. The Use of a Therapeutic Jurisprudence Approach to the Teaching and Learning of Law to a New Generation of Law Students in South Africa

    Directory of Open Access Journals (Sweden)

    E Fourie

    2012-03-01

    Full Text Available In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should be transformed from being primarily concerned with the transmission of knowledge (learning about to being primarily concerned with the practices of a knowledge domain (learning to be. Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university, and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We at the University of Johannesburg are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community. The integration of therapeutic jurisprudence throughout the law student's studies, starting with orientation and continuing through to the final-year clinical experience, will enhance the therapeutic outcomes for all of the parties involved. A therapeutic jurisprudence approach, combined with appropriate teaching and learning methods, will enhance the student's interpersonal skills and writing and reading skills. The teaching methods invoked include role-play to transform formal knowledge into living knowledge, thereby stimulating students' natural practical curiosity and creating a learning environment that supports collaboration and encourages students to act purposefully in such an environment. This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers by using a therapeutic jurisprudence approach, while upholding the values that should guide legal practice, such as integrity and respect for diversity and human dignity. The

  19. Case Law

    International Nuclear Information System (INIS)

    Different case law are presented in this part: By decision dated 17 july 2009, the Ontario Court of Appeal (Canada) has ruled on the scope of solicitor-client privilege and the protections that may be afforded to privileged investigations reports. The decision reaffirms the canadian court system view of the importance of the protection of solicitor-client privilege to the administration of justice; For United states here is a judgment of a U.S. court of Appeals on the design basis threat security rule (2009), this case concerns a challenge to the U.S. Nuclear regulatory commission (N.R.C.) revised design basis threat rule, which was adopted in 2007 (nuclear bulletin law no. 80). The petitioners public citizen, Inc., San Luis Obispo Mothers for Peace and the State of New York filed a lawsuit in the U.S. court of appeals for the Ninth circuit alleging that the N.R.C. acted arbitrarily and capriciously and in violation of law by refusing to include the treat of air attacks in its final revised design basis rule. On the 24. july 2009, a panel of three ninth circuit judges rules 2-1 that the N.R.C. acted reasonably in not including an air treat in its design basis rule. Secondly, judgment of a U.S. court of appeals on consideration of the environmental impact of terrorist attacks on nuclear facilities (2009), this case concerns the scope of the U.S. Nuclear regulatory commission environmental analysis during its review of applications to re-licence commercial nuclear power plants. New Jersey urged the N.R.C. to consider the environmental impact of an airborne terrorist attack on the power plant, arguing that such analysis was required by the national environmental policy act (N.E.P.A.). On 31. march 2009, a panel of three circuit judges declined to follow the ninth circuit opinion and affirmed NRC decision 3-0 ruling that NRC was not required to consider terrorism in its N.E.P.A. analysis because NRC re-licensing would not be a reasonably close cause of terrorism

  20. Jurisprudència i bibliografia sobre la funció pública - The Civil Service: Case Law and Literature - Jurisprudencia y bibliografía sobre la función pública

    Directory of Open Access Journals (Sweden)

    Gemma Geis Carreras

    2012-12-01

    Full Text Available L’article analitza les novetats jurisprudencials i doctrinals aparegudes amb posterioritat a l’aprovació de Estatut bàsic de l'empleat públic (EBEP. En aquest sentit, s’inicia un recorregut amb les darreres sentències del Tribunal Constitucional respecte del dret fonamental a l’accés a la funció pública, passant pels requisits d’accés a la funció pública, les garanties del procediment de selecció envers les mesures de discriminació positiva, polítiques d’igualtat i d’inserció de les persones discapacitades, finalitzant amb l’adquisició i pèrdua de la condició de funcionari. Cal destacar que el context de crisi econòmica actual està present en el treball. L’aprovació de mesures d’un control més gran del dèficit públic ha comportat la impugnació davant dels tribunals de justícia de l’adopció de mesures que afecten els drets retributius dels empleats públics, especialment, del personal laboral. D’altra banda, es fa esment a la publicació de treballs que reflexionen respecte de les mesures de reorganització administrativa, reducció de treballadors públics, la incidència de la reforma laboral en la negociació col·lectiva i la modificació de les condicions de treball dels treballadors públics en el si de les administracions públiques.This article analyzes the novelties in case law and doctrine that have appeared subsequent to the passage of the Basic Statute for Public Employees. In this regard, the article reviews the most recent sentences of the Constitutional Court regarding the fundamental right of access to the civil service, including the requirements for joining the civil service, the guarantees of the selection procedure with respect to affirmative action and the policies for the equality and inclusion of persons with disabilities, and lastly, the acquisition and loss of one´s status as a civil servant. It should be emphasized that the context of the current economic crisis is

  1. Case law

    International Nuclear Information System (INIS)

    This section reports on 7 case laws from 4 countries: - France: Conseil d'Etat decision, 28 June 2013, refusing to suspend operation of the Fessenheim nuclear power plant; - Slovak Republic: New developments including the Supreme Court's judgment in a matter involving Greenpeace Slovakia's claims regarding the Mochovce nuclear power plant; New developments in the matter involving Greenpeace's demands for information under the Freedom of Information Act; - Switzerland: Judgment of the Federal Supreme Court in the matter of the Departement federal de l'environnement, des transports, de l'energie et de la communication (DETEC) against Ursula Balmer-Schafroth and others on consideration of admissibility of a request to withdraw the operating licence for the Muehleberg nuclear power plant; - United States: Judgment of the Court of Appeals for the District of Columbia Circuit granting petition for writ of mandamus ordering US Nuclear Regulatory Commission (NRC) to resume Yucca Mountain licensing; Judgment of the Court of Appeals for the Second Circuit invalidating two Vermont statutes as preempted by the Atomic Energy Act; Judgment of the NRC on transferring Shieldalloy site to New Jersey's jurisdiction

  2. Case law

    International Nuclear Information System (INIS)

    This section treats of the following case laws: 1 - Canada: Decision of the Canadian Federal Court of Appeal overturning a decision to send back for reconsideration an environmental assessment of a proposed new nuclear power plant in Ontario; 2 - France: Council of State decision, 28 November 2014, Federation 'Reseau sortir du nucleaire' (Nuclear Phase-Out network) and others vs. Electricite de France (EDF), Request No. 367013 for the annulment of: - The resolution of the French Nuclear Safety Authority (ASN) dated 4 July 2011 specifying additional regulations for Electricite de France (EDF) designed to strengthen the reactor basemat of reactor No. 1 in the Fessenheim nuclear power plant, and - The resolution of ASN dated 19 December 2012 approving the start of work on reinforcing the reactor basemat in accordance with the dossier submitted by EDF; 3 - Germany: Judgment of the European Court of Justice on the nuclear fuel tax; 4 - India: Judgment of the High Court of Kerala in a public interest litigation challenging the constitutional validity of the Civil Liability for Nuclear Damage Act, 2010; 5 - Japan - District court decisions on lawsuits related to the restart of Sendai NPP and Takahama NPP; 6 - Poland: Decision of the Masovian Voivod concerning the legality of the resolution on holding a local referendum in the Commune of Rozan regarding a new radioactive waste repository; Certain provisions of the Regulation of the Minister of Health of 18 February 2011 on the conditions for safe use of ionising radiation for all types of medical exposure have been declared unconstitutional by a judgment pronounced by the Constitutional Tribunal; 7 - Slovak Republic: Developments in relation to the disclosure of information concerning the Mochovce nuclear power plant

  3. 当代西方德性法理学及其中国意义%Research on Rule by Law from Perspective of Virtue Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    童建军

    2016-01-01

    得益于复兴中的德性伦理学的学术智慧,以索伦为代表的美国法理学家提出了德性法理学的学术命题,反思了以功利主义和道义论为主导的规范伦理学对法理学的影响,提出法理学必须回归亚里士多德。良善立法不能止于防止伤害他人的行为或者保护权利,而是要致力于促进人类繁荣,使人类能够过上卓越的生活;法律的基本概念不应限于福利、效率、自决或平等,而是必须纳入德性、卓越及人类繁荣。法官应当有德性,且应当做出有德的裁决;法官应当根据他们的司法德性而选任。%Benefiting from the academic wisdom of the revival of virtue ethics , the American theorists of jurisprudence , Lawrence B .Solum as an example , have put forward the conception of virtue jurisprudence . They have reflected the deficiency of affects from normative ethics , such as utilitarianism and deontology , on jurisprudence .They proposed that jurisprudence should return to Aristotle .From the aspects of virtue jurispru-dence , good law and excellent governance should not only avoid hurts or defend rights , but also promote the flourishing of human .So the basic concept of law may extend from efficiency , rights and autonomy to virtue and excellence .The judges should own virtue and make virtuous judge .

  4. Case law

    International Nuclear Information System (INIS)

    Several judgements are carried: Supreme Administrative Court Judgement rejecting an application to prevent construction of a new nuclear power plant (Finland); judgement of the Council of State specifying the law applicable to storage facilities for depleted uranium (France); Supreme Court Decision overturning for foreign spent fuel (Russian federation); Court of Appeal Judgement on government decision to allow the start up of a MOX fuel plant ( United Kingdom); judgement on lawfulness of authorizations granted by the Environment Agency: Marchiori v. the Environment Agency; (U.K.); Kennedy v. Southern California Edison Co. (U.S.A); Judgement concerning Ireland ' s application to prevent operation of BNFL ' s MOX facility at Sellafield: Ireland v. United Kingdom; At the European Court of Human Rights Balmer-Schafroth and others have complained v. Switzerland. Parliamentary decision rescinding the shutdown date for Barseback - 2 (Sweden); Decision of the International trade Commission regarding imposition of countervailing and anti-dumping duties on imports of low enriched uranium from the European Union, Yucca Mountain site recommendation (USA). (N.C.)

  5. [Impact of synthetic biology on patent law in view of of European jurisprudence].

    Science.gov (United States)

    Bernardo Alvarez, María Angela

    2014-01-01

    The roots of synthetic biology--the redesign of biological molecules, structures and organisms--can be traced to the research developed by Jacques L. Monod and François Jacob in 1961. This field has undergone significant growth in the past ten years and its emergence has raised the question of whether the patent system is suitable to protect inventions in emergent areas as synthetic biology. The article will analyze the numerous scientific, socio-economic, ethical and legal challenges faced by synthetic biology, introducing the European Patent Law related to biotechnology as the minimum common framework and considering if more changes are needed to adequately protect the inventor rights, while taking into account the arrival of a new research culture, characterized by embracing open-innovation and open-source initiatives. The discussion will review some biotechnological patent law cases and summarize questions as whether isolated molecules of DNA are eligible for patent or the patentability of living matter, under the terms of Directive 98/44/EC. The article will finally consider the impact of synthetic biology on the European patent system.

  6. [Impact of synthetic biology on patent law in view of of European jurisprudence].

    Science.gov (United States)

    Bernardo Alvarez, María Angela

    2014-01-01

    The roots of synthetic biology--the redesign of biological molecules, structures and organisms--can be traced to the research developed by Jacques L. Monod and François Jacob in 1961. This field has undergone significant growth in the past ten years and its emergence has raised the question of whether the patent system is suitable to protect inventions in emergent areas as synthetic biology. The article will analyze the numerous scientific, socio-economic, ethical and legal challenges faced by synthetic biology, introducing the European Patent Law related to biotechnology as the minimum common framework and considering if more changes are needed to adequately protect the inventor rights, while taking into account the arrival of a new research culture, characterized by embracing open-innovation and open-source initiatives. The discussion will review some biotechnological patent law cases and summarize questions as whether isolated molecules of DNA are eligible for patent or the patentability of living matter, under the terms of Directive 98/44/EC. The article will finally consider the impact of synthetic biology on the European patent system. PMID:25845209

  7. The rights of shareholders – basic principle of corporate governance by means of case-specific jurisprudence

    Directory of Open Access Journals (Sweden)

    Adrian Doru BÎGIOI

    2016-04-01

    Full Text Available Respecting shareholders’ rights represents one of the fundamental principles of corporate governance, underpinning the establishment of economic entities, as a form of association of individuals and / or legal entities in order to carry out profit-oriented activities. However, there are situations in which the management, the other shareholders, or even the authorities, do not respect certain shareholders’ rights, leading to a number of negative effects, such as the closing of companies. Based on these considerations, in this paper, we set as research objective to analyze the circumstances, which may affect shareholders’ rights. To meet the research objectives, we analyzed the case-specific jurisprudence published by the courts of law till 31st of December 2015. The results of the study show that the shareholders’ rights, which are not respected, include: the property right, the right to receive dividends, the right to participate and vote in the general assemblies of shareholders, the right to be elected in the governing bodies, and not the least, the most important one in accounting terms, the right to be informed.

  8. Case law

    International Nuclear Information System (INIS)

    This article reviews the judgements and law decisions concerning nuclear activities throughout the world during the end of 1999 and the first semester 2000. In Belgium a judgement has allowed the return of nuclear waste from France. In France the Council of State confirmed the repeal of an authorization order of an installation dedicated to the storage of uranium sesquioxide, on the basis of an insufficient risk analysis. In France too, the criminal chamber of the French Supreme Court ruled that the production in excess of that authorized in the licence can be compared to carrying out operations without a licence. In Japan the Fukui district court rejected a lawsuit filed by local residents calling for the permanent closure, on safety grounds, of the Monju reactor. In the Netherlands, the Council of State ruled that the Dutch government had no legal basis for limiting in time the operating licence of the Borssele plant. In Usa a district court has rejected a request to ban MOX fuel shipment. (A.C.)

  9. Case law

    International Nuclear Information System (INIS)

    The first point concerns the judgement of the federal Administration Court on the standing of third parties regarding attacks at interim storage facilities (2008). In its judgement handed down on 10. april 2008, the german Federal Administrative Court overrules a decision of a Higher Regional Administrative Court and declares that residents in the vicinity of an interim storage facility may challenge the licence for that facility on the grounds that the necessary protection has not been provided against disruptive action or other interference by third parties. The second point concerns the judgement of the European Court of justice of a member State to fulfill obligations under directive 96/29 EURATOM (2007): the united kingdom imposed to intervene only if a situation of radioactive contamination results from a present or past activity for the exercise of which a licence was granted. The national legislation does not oblige the authorities to take measures in circumstances in which radioactive contamination results from a past practice which was not the subject of a such licence. The United Kingdom Government admitted the validity of the Commission claims adding that further legislation to transpose that article (article 53) into national laws is in the process of being drawn up. The third point is relative to judgement of the US court of Appeals on licensing of the L.E.S. uranium enrichment facility (2007), on appeal to the Federal Court of Appeals for the district of Columbia, the joint petitioners objected to the Nuclear regulatory Commission (NRC) issuing to the Louisiana Energy Services, L.P. (L.E.S.) Uranium enrichment Facility in New Mexico on several grounds: the NRC violated the Atomic Energy Act by supplementing the environmental impact statement after hearing closed; the NRC violated the National Environmental Policy Act by insufficiently analysing the environmental impact of depleted uranium waste from the L.E.S. facility; the NRC violated the Atomic

  10. Definition of life law and the situation with problems of China's life jurisprudence.

    Science.gov (United States)

    Liu, Changqiu

    2008-12-01

    Life law is a new conception brought by the development of modern life science and biotechnology. There are many different ideas on the conception of life law in academy. The definition of life law should be footed on the domain of bioethics. Based on bioethics, life law is a group of legislations which are enacted or acknowledged by the state and implemented by the state compulsively with the goal of regulating all types of relations revolving the survival as well as terminal of human beings and some other creatures which play important roles in the maintenance of human's life and health. There are many problems in China's study on science of life law, which need paying special attention to by China's scholars.

  11. The birth and growth of modern jurisprudence in China

    Institute of Scientific and Technical Information of China (English)

    HE Qinhua

    2006-01-01

    This paper relates the birth and growth of modem jurisprudence in China,summarizes several representative works on modem jurisprudence,such as The Development History of China's Jurisprudence,and describes the features that characterize the process of its birth and growth,so as to systematically explore the formation and development of China's modem jurisprudence from the revision of law in late Qing Dynasty to the founding of the People's Republic of China in 1949,and to prove that modem jurisprudence is the starting point and cornerstone for contemporary jurisprudence and the source of its development and prosperity in China.

  12. Where Theory and Law Meet: Trends in establishment clause jurisprudence in the US federal courts and implications for science education

    Science.gov (United States)

    King, Lance E.; Southerland, Sherry A.

    2013-03-01

    In this study, federal court opinions and writings of legal scholars, spanning 63 years of establishment clause jurisprudence in the US federal courts were analysed in an effort to determine dominant trends in judicial philosophy that are of significance to science educators. The study's findings suggest that the dominant legal theory underpinning the adjudication of establishment clause cases on the US Supreme Court has undergone a shift from one that emphasizes separation of church and state to one that favours integration of religion in the public sphere. This development poses significant challenges to science educators who are charged with the task of teaching in accordance with state science standards that emphasize topics that are considered controversial (e.g. evolution and global climate change) by many in the faith-based community. These findings constitute a basis for forecasting future actions in US courts regarding the role of government in establishing religious practices in the public sphere-particularly where such actions intersect with the roles of teachers in the nation's public K-12 science classrooms. Finally, we argue that scientists and science educators must adopt an assertive stance in defining science in curricular frameworks, providing something for the courts to draw upon in future decisions.

  13. Criminal Insulting Laws in Islamic Republic of Iran and Imamieh Jurisprudence

    Directory of Open Access Journals (Sweden)

    Alireza Shakarbigi

    2013-01-01

    Full Text Available As crimes against persons causing physical condition or aggrieved party reaction against the offenders in the community are also, offenses against the person and dignity of people too; because these offenses are so much impairment psychological trying very hard and difficult to treat, and treatment of physical injuries and financial losses. Can be defined as insulting, said: A crime in which the person using speech, writing, movement and gesture of humiliation and indignity caused another prestigious on. As diagnostic criteria of common insulting against crimes such as counterfeiting and accidents, etc that are expert as diagnostic criteria of. In this research we have examined the jurisprudential views of the insulting, insulting and then we have discussed from the perspective of criminal law which is insulting to the law of the examples we have cited. That are include the following: First topic: simple insulting, Second: aggravated insulting, and the third topic: insulting the Press. And should in summary said that the as diagnostic criteria of that it custom and custom insulting the judge will decide according to the law.

  14. "The ladder of the law has no top and no bottom": how therapeutic jurisprudence can give life to international human rights.

    Science.gov (United States)

    Perlin, Michael L

    2014-01-01

    In the past two decades, therapeutic jurisprudence (TJ) has become one of the most important theoretical approaches to the law. But, there has, as of yet, been puzzlingly little written about the relationship between TJ and international human rights law. To be sure, there has been some preliminary and exploratory work on the relationship between TJ and international law in general, but virtually nothing on its relationship to international human rights law in a mental disability law context. This paper seeks to focus on this lack of consideration, to speculate as to why that might be, and to offer some suggestions as to how to infuse some new vitality and vigor into this important area of law and social policy. In this article, first, I offer a brief explanation of TJ. Next, I discuss, also briefly, the impact (and the potential future greater impact) of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities (CRPD) on this area. Then, I consider the sparse commentary currently available on the intersection between TJ and international law in general, and will speculate as to why this is so sparse. Then, I offer some thoughts as to the TJ/international human rights law connection, looking specifically at three questions that require far more attention from this perspective (access to counsel, the use of state-sanctioned psychiatry as a tool of political oppression, and the potential redemptive power of the CRPD), and describe a research agenda that scholars might turn to in furtherance of the investigation of the relationships between therapeutic jurisprudence, international human rights law and mental disability law. I conclude by calling on scholars, activists, advocates and practitioners to begin to take this connection seriously in their future work.

  15. Where Theory and Law Meet: Trends in Establishment Clause Jurisprudence in the US Federal Courts and Implications for Science Education

    Science.gov (United States)

    King, Lance E.; Southerland, Sherry A.

    2013-01-01

    In this study, federal court opinions and writings of legal scholars, spanning 63 years of establishment clause jurisprudence in the US federal courts were analysed in an effort to determine dominant trends in judicial philosophy that are of significance to science educators. The study's findings suggest that the dominant legal theory…

  16. "Braxton Hick's" or the birth of a new era? Tracing the development of Ireland's abortion laws in respect of European Court of Human Rights Jurisprudence.

    Science.gov (United States)

    Daly, Brenda

    2011-09-01

    In Ireland, Article 40.3.3 degrees of Bunreacht na hEireann (the Irish Constitution) guarantees the right to life of the unborn child and the equal right to life of the mother. Abortion in Ireland is permissible only where there is a real and substantial risk to the mother's own life. Since Ireland became a signatory to the European Convention on Human Rights in 1950,2 there have been concerns that it could result in Ireland being compelled to introduce a right to abortion. This article commences with a review of the extant law on abortion in Ireland, tracing the Constitutional protection afforded to the unborn child. The article will discuss the impact of the European Court of Human Rights' jurisprudence in regard to access to abortion and to information on abortion services in Ireland in an effort to ascertain if it really has resulted in a radical change to Irish abortion laws. As such, it will also be necessary to examine the more recent decisions of the ECtHR such as Tysiac v. Poland, and A, B, and C v. Ireland, to determine both the approach of the ECtHR to access to abortion in general and also to consider if it has resulted in a liberalisation of abortion law in Ireland.

  17. Third-party protection and residual risk in Atomic Energy Act. On legally dogmatic classification of paragraph 7 Atomic Energy Act in the jurisprudence of the Federal Constitutional Law and Federal Administrative Court

    International Nuclear Information System (INIS)

    On 25th June 2009, the Council of the European Union has passed the directive 2009/71/EURATOM on a common framework for nuclear safety of nuclear installations. At first, the 12th Law amending the Atomic Energy Act supplements the Atomic Energy Act by regulations which implement the directive 2009/71/EURATIM into national law. In addition, paragraph 7 Atomic Energy Act introduces a new substantive obligation of the operators of nuclear power plants. The author of the contribution reports on whether paragraph 7 Atomic Energy Act provides additional nuclear protection or reduces the potential protection by law and jurisprudence.

  18. A school peer mediation program as a context for exploring therapeutic jurisprudence (TJ): Can a peer mediation program inform the law?

    Science.gov (United States)

    McWilliam, Nicky

    2010-01-01

    This paper reports an exploratory study of a school peer mediation program implemented as an alternative way to manage bullying and other destructive conflict. The study explores the effects of the program on the well-being of members of the school community by examining perceptions of students, staff and a sample of parents and former students. Drawing on therapeutic jurisprudence (TJ) the study explores whether the component parts of the program, separately or together, promote intended or unintended therapeutic effects. The preliminary findings of the study emphasise the importance of peer mediation training and suggest that existing scholarship in the area of school conflict resolution and peer mediation, when viewed through a TJ lens, may provide valuable insights into how to optimally configure programs for development and adoption in schools and other community settings. The study highlights the lack of attention paid by the legal system to valuable scholarship in the area of school conflict resolution and peer mediation, which may have implications for the understanding and development of legal processes and the law in general.

  19. Taking the Strasbourg Jurisprudence into account : developing a 'municipal law of human rights' under the Human Rights Act.

    OpenAIRE

    Masterman, R.

    2005-01-01

    Questions surrounding the legitimate extent of the judicial role have long been the source of controversy. Concerns that unelected and unrepresentative judges are ‘legislating’ rather than interpreting the law or are interfering in matters of ‘democratically endorsed’ government policy, have often been, and will continue to be, raised by academics and politicians alike. The question is one of separation of power— of the appropriate constitutional role and division of functions between the exe...

  20. THE RIGHT TO A CLEAN ENVIRONMENT. INTERNATIONAL RECOGNITION OF A HUMAN RIGHT TO A CLEAN ENVIRONEMENT BY ECTHR JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Oana Maria HANCIU

    2015-07-01

    Full Text Available European Convention on Human Rights (ECHR does not specifically recognize a right to a clean environment, nor speaks specifically about environmental issues. However, there are many cases in the ECtHR jurisprudence which indirectly have a linkage with environmental protection. Often, throughout its decisions, ECtHR considers a positive obligation of States to take all necessary measures to protect human life and thus to provide a suitable environment for human living. The paper analyses the linkage between human rights and the international environment law and the role of ECtHR jurisprudence in enshrining an international human right in the field of environmental protection.

  1. An Analysis of First Amendment Jurisprudence on the Supreme Court Case of Locke v. Davey

    Science.gov (United States)

    Herzog, Alexander John

    2010-01-01

    Scholarship programs authored by state legislatures may conflict with a state's constitution. In the case of "Locke v. Davey" 540 U.S. 807 (2003), Joshua Davey challenged the State of Washington's withdrawal of his Promise Scholarship claiming violation of his First Amendment rights under the United States Constitution. This historical case…

  2. Prior consultation in cases of mining for indigenous communities and tribal: jurisprudence of the Colombian Constitutional Court

    Directory of Open Access Journals (Sweden)

    Claudia Jimena Abello

    2012-12-01

    Full Text Available The paper discusses the jurisprudence of the Constitutional Court on prior consultation and mining. The author identifies the rules which have been introducedby the Court for weighting the right to prior consultation with respect to the right of the Nation to the exploitation of natural resources. Also, the paper demonstrates how the Constitutional Court understands the prior consultation procedure. Finally, a brief discussion of multiculturalism and the differential rights is offered.

  3. Persons without an heir in his will or judgment without an heir, from the perspective of jurisprudence and law

    Directory of Open Access Journals (Sweden)

    Mojtaba Mohebi

    2014-05-01

    Full Text Available Wills, legal matters and legal ordinances, which were subject to the death of the testator. Will, from the perspective of jurists and lawyers, is divided into two categories ( Directive Possession - Abide . Unlike contract law, on behalf of the client 's life is a runner, of wills after the testator 's death. Examples of wills. Wills persons without heirs, or the judge has no heir. That is, with respect to personal property, which, while being the heirs of the deceased. Part or all of his property, the judgment is yours without an heir. Among jurists and lawyers about wills surplus to third parties without heirs, or the heirs there is no judgment. It seems that five major, there is separation. Noting the authors believe that the rule will, is applicable only to the third property, and on its surplus, subject to the permission of the heirs, in default of any person without testamentary heir or no heir rule, the rule Shedding person in life can any property be seized, and a will debate and process testator 's death, the heirs causal albeit limited to one person, it seems, in excess of one-third of wills is not right because it would infringe upon the rights of third parties, and Meanwhile Gradation rule sequence and confirm the story, which is primarily wills, inheritance and wills after the third Tuesday in the process of inheritance, the disorder is caused, therefore, it seems, wills Noting that the rules of jus conges, and the public order is this consistent with the norms and legal principles, and governed solely operate the public order.

  4. What is a Leading Case in EU law? An empirical analysis

    DEFF Research Database (Denmark)

    Sadl, Urska; Panagis, Yannis

    2015-01-01

    Lawyers generally explain legal development by looking at explicit amendments to statutory law and modifications in judicial practice. As far as the latter are concerned, leading cases occupy a special place. This article empirically studies the process in which certain cases become leading cases....... Our analysis focuses on Les Verts, a case of considerable fame in EU law, closely scrutinising whether it contains inherent leading case material. We show how the legal relevance of a case can become “embedded” in a long process of reinterpretation by legal actors, and we demonstrate that the actual...... legal impact of Les Verts on the acquis is most visible in the area that was sidelined in the academic commentary. This implies that a leading case is a symbolic category, which might not always correspond to the actual role that the case plays in the Court’s jurisprudence....

  5. Ethical Sentiments and the Role of Literature in the Jurisprudence Seminar

    Science.gov (United States)

    Penrod, Lynn

    2010-01-01

    This article focuses on a typical law and literature jurisprudence seminar and the use of literary texts in this type of class to foster the development of "ethical sentiments" in future legal practitioners. While the majority of jurisprudence courses within a standard law curriculum tend to use political theory, philosophical, or socio-cultural…

  6. Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice

    Directory of Open Access Journals (Sweden)

    Konrad Graf

    2011-08-01

    Full Text Available Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason.

  7. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE RIGHTS RELATED TO ARTICLE 6 UNDER THE ECHR JURISPRUDENCE: INDIPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW

    Directory of Open Access Journals (Sweden)

    Elena ANDREEVSKA

    2014-05-01

    Full Text Available Access to justice is a core fundamental right and a central concept in the broader field of justice. The case-law of the European Court of Human Rights on Article 6 is a complex body of rules. Article 6 of the Convention was inspired by Article 10 and 11(1 of the Universal Declaration of Human rights of 1948. It has also its counterpart – with minor differences in Article 14 of the International Covenant on Civil and Political Rights on 1966. Article 6, which guarantees the right to fair trial, occupies a central place in the system of the Convention. it is a generally agreed that this provision is the most frequently cited one of the Convention, both at the national and international levels. This Article contains a variety of rights which are all related to the good administration of justice, not only criminal, but also in the civil and administrative matters. The ‘independent and impartial tribunal established by law’ is one of textual elements of the Fair Trial Right, as long as it has direct and explicit expression in the text of Convention. Even in simple logical way it can be considered as a suite of requirements referring to 1 the notion of tribunal 2 its attribute of being established by law 3 being independent and 4 being impartial.

  8. Triblex thematic analysis of the case law of the ILO Administrative Tribunal

    CERN Document Server

    International Labour Organization. Geneva

    Triblex is a thematic database on the case law of the Administrative Tribunal of the International Labour Organization, which hears complaints from serving and former officials of the ILO, or of one of the thirty-odd international organizations that recognise its jurisdiction, about breach of the terms of their appointment or staff rules or regulations. Relevant passages of the Tribunal's reasoning can be located in the Triblex database in various ways, mainly using terms (descriptors) from the Triblex Thesaurus. The database is in English and French and can be searched in either language. It is intended for litigants, counsel, staff representatives, personnel managers and anyone with an interest in the law of the international civil service. Triblex est une base de données thématique sur la jurisprudence du Tribunal administratif de l'Organisation internationale du Travail. La saisine du Tribunal est ouverte aux fonctionnaires ou anciens fonctionnaires du Bureau international du ou des normes statutaires o...

  9. Islamic Jurisprudence and the Primacy of Shariah

    OpenAIRE

    2013-01-01

    The purpose of shariah like any other legal system is the maintenance of law and order. Society cannot achieve peace and prosperity without some form of social control. Outlawry can only lead to social disequilibrium. The focus of this paper is not the legal or juridical functions of the shariah, but the social and political dimensions of Islamic jurisprudence. Since the purpose for being of an Islamic state is the full implementation of the shariah, the aim of this study is to evaluate the n...

  10. THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM

    Directory of Open Access Journals (Sweden)

    ELENA ANGHEL

    2013-05-01

    Full Text Available The role assigned to the judge varies from one legal system to another. In the Anglo-Saxon legal systems, in the context of the absence of an independent legislative body, judge is the one who creates law; his mission consists in solving a specific case, given the existing judicial precedents; if he can not find an appropriate rule of law, the judge has to create one and to apply it. On the other hand, in the continental system, creation of law is the mission of the legislator. Evolving under the influence of Roman law, the continental law systems differ from the Anglo-Saxons by: the assuming of Corpus iuris civilis; the tendency to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of blurring the role of jurisprudence. In spite of these essential differences, the last decades of the twentieth century have found out the convergence of the written coded system and the common law system. Thus, the increasing of the legislature`s role in common law system is accompanied by the reconsideration of the judge`s role in the Roman-Germanic legal system. While Anglo-Saxons accept the "compromise" of coding, Continentals shyly step towards rethinking the status of law source of the jurisprudence. History has shown that, one by one, law and jurisprudence have disputed the the role of prime creator of law. Emphasizing the creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its essence abstract, but the appreciation of the jurisprudence makes it alive, as the judge, understanding the law, examining the interests of parties and taking inspiration from equity, ensures the ultimate purpose of the law: suum cuique tribuere”1. However, as we shall see below, in the Roman-Germanic law system, the creative role of jurisprudence still raises controversy.

  11. Third-party protection and residual risk in Atomic Energy Act. On legally dogmatic classification of paragraph 7 Atomic Energy Act in the jurisprudence of the Federal Constitutional Law and Federal Administrative Court; Drittschutz und Restrisiko im Atomrecht. Zur rechtsdogmatischen Einordnung des paragraph 7d AtG in die Rechtsprechung des Bundesverfassungs- und des Bundesverwaltungsgerichts

    Energy Technology Data Exchange (ETDEWEB)

    Arndt, Hans-Wolfgang

    2012-03-15

    On 25th June 2009, the Council of the European Union has passed the directive 2009/71/EURATOM on a common framework for nuclear safety of nuclear installations. At first, the 12th Law amending the Atomic Energy Act supplements the Atomic Energy Act by regulations which implement the directive 2009/71/EURATIM into national law. In addition, paragraph 7 Atomic Energy Act introduces a new substantive obligation of the operators of nuclear power plants. The author of the contribution reports on whether paragraph 7 Atomic Energy Act provides additional nuclear protection or reduces the potential protection by law and jurisprudence.

  12. Case law and administrative decisions

    International Nuclear Information System (INIS)

    About the case law we find four parts, one concerns France and the judgement of the council of state on an application for annulment of the decree of 10 january 2003 authorizing Cogema to modify a major nuclear installation, a second one is in relation with the Usa through the ruling in relation to the sale of uranium enrichment services in the united States, decision concerning the Yucca mountain repository, Indiana michigan power company v. United States, natural resources defense council, snake river alliance, confederated tribes and bands of the Yakama indian Nation, Shoshone Bannock Tribes v. Abraham. For the third part devoted to European union it is question of the judgement of the European Court of justice in European union v. UK, the fourth part concerns administrative decisions with the early shutdown of Barsebaeck-2 in Sweden. (N.C.)

  13. The Past and Present of Legal Finding:The Changes from Historical Jurisprudence to Concept Law as a Clue%法律发现的“前世”与“今生”--以历史法学到概念法学的变迁为线索

    Institute of Scientific and Technical Information of China (English)

    张志文

    2013-01-01

    历史法学代表人物萨维尼倡导“法是民族精神的体现”,致力于拉近法律与社会生活之间的关系。历史法学所力主的“法是被发现”主要是从法的产生角度也即立法立场来分析的。作为历史法学派的延续之一,概念法学倾向于构建严谨的能够涵摄社会生活各个方面的法律体系。在它的视域中,法官只需从法律体系中发现法律即可完成对案件的判断,从而将司法者囚禁在了概念的城堡里。这种理论上的幻想遭到耶林等社会法学者的批判也在情理之中了。%As the representative of the historical jurisprudence, Savigny advocates that law is the embodiment of national spirit which aims to narrow the relationship between law and social life. The historical jurisprudence’s view that“law is to be found”is mainly generated from the perspective of legislative position. As one of the continuation of the historical jurisprudence, the concept law is to build the rigorous legal framework that could cover the overall social life. In its view, the judge only needs to find the law from the legal system to make the judgment that the judge is imprisoned in the castle of concept. It is reasonable that the theory fantasy is criticized by the sociological jurisprudence representative Jhering.

  14. O Direito Costumeiro na Legislacao e na Jurisprudencia do Brasil: A Desescravizacao (Common Law in Legislation and Jurisprudence in Brazil: Abolition of Slavery).

    Science.gov (United States)

    Gebara, Ademir

    2000-01-01

    Demonstrates that in Brazil, common law was an important component for development of the political project, elaborated with the objective of organizing and disciplining the formation of a market of free workers. Considers that the history of work relations originated in the Portuguese discovery of Brazil in the 16th century. (BT)

  15. Jurisprudence by the European Court of Justice in the field of environment protection

    International Nuclear Information System (INIS)

    The lecture gives a detailed overview of the jurisprudence by the European Court of Justice, especially of the legal and contractual basis of environment protection. It deals with the distribution of responsibilities, jurisprudence on water protection, clean air presevation, and disposal law. From a global viewpoint, the European Court of Justice can only give impulses, the implementation of concrete measures being the task of the politicians. (HSCH)

  16. Individualizing Instruction in Pharmacy Jurisprudence

    Science.gov (United States)

    Tindall, William N.

    1978-01-01

    Students at Creighton University's School of Pharmacy were offered the option of taking a pharmacy jurisprudence course by a self-taught, self-paced mode or by the traditional lecture mode. Comparasions were made of students in each group. Topics of the learning module and NABPLEX propositions for examining competency are included. (SW)

  17. Pondering on Administrative Jurisprudence Teaching Re-form for Jurisprudence Undergraduates%法学本科行政法学教学改革的思考

    Institute of Scientific and Technical Information of China (English)

    刘雨嫣

    2015-01-01

    行政法学是法学本科生必修的主干课程之一。在行政权力日益扩张和提倡行政法治的当今,行政法学的学习显得尤为重要,但行政法学教学也存在诸多问题。从行政法学教学目标、教学方式以及教学内容等方面加以改革和完善是改变行政法学教学现状的必要途径。%Administrative jurisprudence is a main compulsory course for jurisprudence undergraduates. In today's increasingly expanding administrative power and the advocacy of law-based administration, the learning of administrative jurisprudence is particularly important, but there are also various problems in the teaching of administrative jurisprudence. To reform and improve administrative jurisprudence teaching from its teaching objec-tives, teaching methods and teaching content is a necessary way to change the current situation of administrative jurisprudence teaching.

  18. 合同基本范畴之法哲学检讨%Jurisprudence-based Criticism on the Basic Conceptual Category of Law of Contract

    Institute of Scientific and Technical Information of China (English)

    佘发勤; 李斌

    2009-01-01

    传统合同法理论在合同基本范畴方面存在一些重要缺陷,进而导致悖论与一系列理论上的混淆.根据言语行为理论以及行为的法律判断模式,通过语言分析与文本分析,揭示了传统合同成立与生效理论缺陷的根源:由于对"合同"、"成立"、"有效"与"生效"等缺乏清晰的认识,不仅导致相互关系的混淆,也导致在法律要件认识上的错误;澄清了"合同"及其"成立"、"无效"、"有效"、"生效"的含义以及它们之间的内在关联,并在此基础上重构合同效力形态的内在逻辑关系.%It was found that there are theoretically material defects in the basic conceptual category of the conventional law of contract, thus resulting in a paradox with a series of confusion. According to the theory of linguistic act and the mode of legal judgment of an act, the root of the defects in the "entering into the contract" and "putting the contract into effect", which are conventionally used in various contracts, is revealed theoretically via linguistic and textual analyses. Because of lack of definitive cognition on the words or phrases such as "contract", "entering into the contract", "in effect" and "take effect", the mutual confusion between them and wrong cognition of juridical essentials both emerge. For these reasons, it is necessary to ascertain definitely the implications of those words and phrases and their interrelationships, thus restructuring the inherent logical relationship in the expressing form of the effect of contract.

  19. Legal argumentation based on foreign law An example from case law of the South African Constitutional Court

    Directory of Open Access Journals (Sweden)

    Andrea Lollini

    2007-06-01

    Full Text Available This article aims to make some introductory remarks concerning the phenomenon of the circulation of ‘foreign law’ between constitutional courts. A convenient setting for some considerations regarding this legal phenomenon is the South African constitutional jurisprudence, since Section 39 of the 1996 Constitution enables the Constitutional Court to ‘consider foreign law’ when interpreting the Bill of Rights. This provision has led to the wide use of foreign jurisprudence and legislation, as well as extra-systemic parameters, that have formed the basis for models of legal argumentation. The article explores what appears to be a recurring ‘patterns’ of legal argumentation based on foreign law used by the Court which has been defined ‘probative importation’.

  20. Jurisprudence and Legal Philosophy in Twentieth-Century America--Major Themes and Developments.

    Science.gov (United States)

    Golding, Martin P.

    1986-01-01

    A discussion of jurisprudence and legal philosophy examines twentieth-century developments in four areas: the relation of law and morality, the nature of legal rules and legal concepts, the nature of judicial decision making, and the relation of law to the social sciences. (Author/MSE)

  1. Anglo-American Jurisprudence and the Native American Tribal Quest for Religious Freedom.

    Science.gov (United States)

    Loftin, John D.

    1989-01-01

    Argues that Native American tribes encounter major legal problems in the practice of traditional religions due to differences between Native and Anglo American worldviews. Examines the ideology of civilization underlying values in American jurisprudence, foundations of American Indian law, and relevant constitutional law. Contains over 200…

  2. Swiss Patent Jurisprudence 2012

    OpenAIRE

    Rigamonti, Cyrill

    2013-01-01

    The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since 1 January 2012. This article reviews and contextualizes the most important patent cases the Swiss Federal Patent Court and the Swiss Federal Supreme Court. It concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe.

  3. Mass Communication Law; Cases and Comment.

    Science.gov (United States)

    Gillmor, Donald M.; Barron, Jerome A.

    The teaching materials presented in this casebook combine two perspectives: that of the journalist and that of the lawyer. The holdings of the courts on cases involving the First Amendment, libel, pornography, fair trial, free press, and the regulation of radio and television broadcasting are presented. In addition some problems of law and…

  4. The European Emissions Trading Scheme case law

    NARCIS (Netherlands)

    J.A.W. van Zeben

    2009-01-01

    Within European climate change and energy policy, the European Emissions Trading Scheme (EU ETS) occupies a prominent role. This article considers the developing case law of the European courts on the EU ETS. Specific attention is paid to the role of the different actors within the EU ETS and the im

  5. The "Natural Law Tradition."

    Science.gov (United States)

    Finnis, John

    1986-01-01

    A discussion of natural law outlines some of the theory and tradition surrounding it and examines its relationship to the social science and legal curriculum and to the teaching of jurisprudence. (MSE)

  6. Review of a monograph by P. N. Panchenko «State-legal regularities in the history and theory of state and law and criminal law». Moscow: «Jurisprudence» Publishers, 2014. 518 p.

    Directory of Open Access Journals (Sweden)

    Gennadiy N. Gorshenkov

    2015-12-01

    Full Text Available The article analyzes the problem of legislation imperfection in the sphere of normative legal acts adoption as it is studied in the reviewed monograph. The imperfection consists of ignoring the state and legal regularities. The author39s position is discussed that the normativelegal acts should meet not the legislatorsrsquo ambitions but the legitimate interests of citizens and the state. The author emphasizes the practical benefit of those legal measures that are proposed to stabilize the economy. The idea is developed of creating a general theory of crime and the author39s attitude to modern criminology. The author39s attempt is assessed to adjust the criminal law for the strategic challenges facing Russia in different spheres of life. nbsp

  7. ENFORCED DISAPPEARANCE OF PERSONS UNDER INTERNATIONAL CRIMINAL LAW: THE CASE “GUERRILHA DO ARAGUAIA” IN BRAZIL

    Directory of Open Access Journals (Sweden)

    Angela Pires Pinto

    2011-12-01

    Full Text Available The case “Guerrilha do Araguaia” is well known in Brazil in the view of the disappearances of opponents to the military regime occurred between 1972 and 1974, in the region known as Araguaia. Despite the efforts made by the families of the victims to seek responsibility and redress, few progress has been done. In 1995, Brazil recognized its responsibilities for the deaths and established a Commission to provide compensation to the families of the victims. The Amnesty Law prevented the State to initiate the criminal proceedings related to the responsibilities of those involved in the disappearances, torture and killings. On December 2010, the Inter-American Court of Human Rights decided that Brazil is responsible for the enforced disappearances in the Araguaia's region and, following its previous jurisprudence, determined that the State initiate adequate investigation and criminal proceedings related to the facts that amount to crimes against the humanity. In the view of the determination of criminal responsibilities on the “Guerrilha do Araguaia”'s case, this article will examine the grounds of criminal liability of the alleged offenders under the international criminal law as well as under the Brazilian domestic law, analysing the limitations that arise from both jurisdictions.

  8. Lex Sportiva and Lex Ludica: the Court Of Arbitration for Sport’s Jurisprudence

    OpenAIRE

    Foster, Ken

    2005-01-01

    What does the jurisprudence of the Court of Arbitration of Sport (CAS) reveal about international sports law? It is claimed that CAS applies lex sportiva; distinct universal legal principles of sports law. I argue that lex sportiva is an imprecise term covering different concepts.The awards of CAS are studied and it is argued that five different legal principles are employed: a lex ludica, good governance, procedural fairness, harmonisation of standards between international sporting federati...

  9. How Do Case Law and Statute Differ? Lessons from the Evolution of Mortgage Law

    OpenAIRE

    Andra Ghent

    2014-01-01

    This paper traces the history of mortgage law in the United States. I explore the history of foreclosure procedures, redemption periods, restrictions on deficiency judgments, and foreclosure moratoria. The historical record shows that the most enduring aspects of mortgage law stem from case law rather than statute. In particular, the ability of creditors to foreclose nonjudicially is determined very early in states' histories, usually before the Civil War, and usually in case law. In contrast...

  10. Disability Case Review of Administrative Law Judge Hearing Decisions

    Data.gov (United States)

    Social Security Administration — The Disability Case Review is a post-effectuation quality review of administrative law judge (ALJ) disability hearing decisions. This dataset includes results from...

  11. Law in the Social Studies

    Science.gov (United States)

    Gerlach, Ronald A.

    1970-01-01

    An evaluation is made of existing teacher guides and curricula, and proposals are given for curriculum improvements in the areas of Jurisprudence, Law, and Civics at the elementary and secondary level. (EJS)

  12. [Mandatory vaccination and health's right: the value of case law in the public health practice in Italy].

    Science.gov (United States)

    Tafuri, S; Martinelli, D; Prato, R; Germinario, C

    2012-01-01

    In Italy there have been several court appeals registered, which have been driven by individual convictions or group actions or movements and were aimed at obtaining exemption from the obligation to comply with compulsory vaccinations required by law. The aim of the present paper is to provide a quick review of the sentences resulting from activating these disputes, in order to contribute to the debate on overturning compulsory vaccination. The Jurisprudence of the Italian Constitutional Court has repeatedly confirmed the judgment on the constitutionality of rules on obligation, clarifying that only where specific reasons exist that make vaccinating the individual dangerous may non-compliance with the rules on compulsory vaccination be justified. This is in contrast with the case law on enforcement of compulsory vaccination, through the temporary suspension of parental authority. Taking responsibility for promoting immunisation decisions away from Public Health Services and handing it to the courtroom is not advisable, given the very small benefit. The problem must be placed under the careful attention of the Health Service due to communicative implications, which can be serious during the transition from a compulsory system of immunisation to a voluntary one.

  13. A Milestone in Polish CISG Jurisprudence and Its Significance to the World Trade Community

    Directory of Open Access Journals (Sweden)

    Aleksandra Jurewicz

    2009-09-01

    Full Text Available This comment analyzes a case from the Polish Supreme Court that, because of its rigorous discussion of many fundamental matters and embodiment of the Court’s effort to make its decision within the framework of the Vienna Convention, serves as a great contribution to the global CISG jurisprudence.

  14. The TEXTBOOK - Directives, Regulations, Case Law

    DEFF Research Database (Denmark)

    Fomcenco, Alex; Werlauff, Erik

    The TEXTBOOK is a collection of carefully selected directives, regulations, and judgments. Whether you are a student, a scholar, or a practitioner of law, this book is a supplemental tool in your work with European business law. It is recommended that you have this book within your reach when you...

  15. Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice

    OpenAIRE

    Konrad Graf

    2011-01-01

    Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action conte...

  16. The Earth Community and Ecological Jurisprudence

    Directory of Open Access Journals (Sweden)

    Peter David Burdon

    2013-12-01

    Full Text Available Legal philosophical discourse tends to be animated by some conception of self and the parameters of community. Reflecting a vast heritage of humanist philosophy and theology, western legal concepts reflect anthropocentric values. Theories of law and legal concepts promote human beings as separate to the environment and define frameworks for the exploitation of nature. Against this paradigm, environmental philosophers have sought to redefine human beings as integral members of a greater Earth community – nature is a community of subjects, not a collection of objects. This alternative conception of self carries important consequences for legal philosophy. This paper explores these consequences first by analysing the ecological conception of self and community articulated by ‘geologian’ Thomas Berry (1914-2009. Second, this paper uses Berry’s analysis to develop an ecological theory of jurisprudence. This theory connects human law with ecological integrity and holds that human law attains legal quality (in part when enacted for the common good of the comprehensive Earth community. Throughout this analysis, the paper also highlights the limitations Berry’s philosophical and legal writing and seeks dialogue with leftist political theory. El discurso filosófico jurídico tiende a estimularse por una concepción del individuo y por parámetros de comunidad. Como reflejo de una vasta herencia de la filosofía humanista y la teología, los conceptos jurídicos occidentales reflejan valores antropocéntricos. Teorías del derecho y conceptos legales promueven seres humanos separados del medio ambiente y definen los marcos para la explotación de la naturaleza. Frente a este paradigma, los filósofos ambientales han tratado de redefinir los seres humanos como miembros de una comunidad de la Tierra más amplia – la naturaleza es una comunidad de sujetos, no una colección de objetos. Esta concepción alternativa del individuo conlleva

  17. The case for pluralism in postnational law

    OpenAIRE

    Krisch, Nico

    2009-01-01

    As the divide between domestic and international law becomes blurred, paradigms for the structure of the new, postnational legal order remain elusive, on both the analytical and the normative plane. In this paper, I inquire into the normative status of two main candidates, constitutionalism and pluralism. The constitutionalist ideal of a coherent, hierarchically structured order in a framework defined by law is often seen as an attractive goal also for postnational politics, but on closer loo...

  18. EU external relations law : text, cases and materials

    NARCIS (Netherlands)

    Van Vooren, Bart; Wessel, Ramses A.

    2014-01-01

    This major new textbook for students in European law uses a text, cases and materials approach to explore the law, politics, policy and practice of EU external relations, and navigates the complex questions at the interface of these areas. The subject is explored by explaining major constitutional p

  19. The State non-contractual liability because of forced displacement of persons (Setting up a line of case law in State council decisions

    Directory of Open Access Journals (Sweden)

    Diego Armando Yáñez Meza

    2013-06-01

    Full Text Available Initially the theory of repairing the damage caused by act or omission attributable to the state as a subject faced the dogma of irresponsibility. This was a paradigm that in the context of the new constitutional law should not be allowed any validity because it is not a case of the exercise of a divine power or Leviathan because of its superiority over the inhabitants, as institutionalist theses of yore held. However, as it will be evident, there is some jurisprudence position that reminds us of those theses concerning the state responsibility because of the case of displaced persons and there are doctrinal realities that pose their attenuated return since the law of non-contractual liability appears as an option which is ill-suited for the victims. Hence the need to determine the pattern of resolution to the legal problem posed by the Administrative Justice in order to identify its characteristics and to establish the road map drawn to repair one of the most flagrant violations of human rights and humanitarian international law.

  20. The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature

    Directory of Open Access Journals (Sweden)

    Nathalie Rühs

    2016-02-01

    Full Text Available To date, international processes associated with sustainable development have not led to an internationally legally binding framework that adequately addresses the challenges we face. Human influence on the planet has led to the adoption, although not universally accepted, of the term Anthropocene to define our new relationship with nature. This paper aims to look at the role and rule of law in the making of society and, more importantly, the arguments for a shift in the paradigm from an Anthropocentric ontology to a more Earth-centered one. We critique the current approach to sustainable development and environmental protection, review arguments on the Rights of Nature and explore the potential for the concept of Earth Jurisprudence building on current literature. In particular, the paper outlines that a constitutional right of nature is needed to address the challenges that we now face globally. To this end, we also examine in detail the case study of the constitution of Ecuador where the rights of nature have been codified. We outline some of the key issues involved in this proposed approach to new legal frameworks and make recommendations for future research.

  1. Notes on Jurisprudence: The Lease of State Private Property and Its Intuitu Personale Nature

    Directory of Open Access Journals (Sweden)

    Ovidiu PODARU

    2011-10-01

    Full Text Available Starting from a case of the jurisprudence of the Cluj Court of Appeal, this study probes into the different aspects of the contract of lease for lands pertaining to the State’s private domain (that is, under the Local Council’s management through which the lessees, in consideration of certain special criteria, procure the right to employ the land for a fixed term of 99 years, in order to build individual housing units. The fundamental issue that needs to be addressed is whether the lesser can one-sidedly increase the rent due to the fact that a third party buyer, to whom the initial lessee sold the building, failed to comply with the special conditions that led to the initial abatement of rent. It is reasonable to assume that such a decision would be illegal taking into account that the lease contract has a civil nature and not an administrative one (as a result the lesser cannot unilaterally alter the contract and, on the other hand, the fact that this type of contract does not retain its intuitu personae nature throughout its period of enforcement (considering the provisions under art. 41 of Law no. 50/1991 on construction permits, even though that attribute was essential at the moment when the contract was concluded.

  2. ISSUES RAISED BY THE CASE LAW

    Directory of Open Access Journals (Sweden)

    Marta Claudia CLIZA

    2010-06-01

    Full Text Available This paper has taken into account the legal practice generated by the two texts excerpted from Law no. 554/2004, respectively articles 14 and 15. The need of such an endeavour is justified by a heterogeneous practice, which has created confusion amongst justiciable people. The suspension of administrative acts represents an institution in itself, and in this situation, we deal with the cancellations ruled by the courts when certain cumulative conditions are not complied with. This is precisely why we need both a theoretical and a practical analysis of the institution of administrative suspension by an administrative court, in the context of the two texts of the law mentioned above

  3. The Delinquencies of Juvenile Law: A Natural Law Analysis

    Directory of Open Access Journals (Sweden)

    Ellis Washington

    2010-07-01

    Full Text Available This article is a substantive analysis tracing the legal, philosophical, social, historical, jurisprudence and political backgrounds of juvenile law, which is an outgrowth of the so-calledProgressive movement - a popular social and political movement of the late nineteenth and early twentieth century. I also trace how this socio-political cause célèbre became a fixture in Americanculture and society due to existential child labor abuses which progressive intellectuals used as a pretext to codify juvenile law in federal law and in statutory law in all 50 states by 1925. Moreover the dubious social science and Machiavellian political efforts that created the juvenile justice system out of whole cloth has done much more harm to the Constitution and to the children it was mandated to protect than any of the Progressive ideas initially envisioned rooted in Positive Law (separation of law and morals. Finally, I present am impassioned argument for congressional repeal of all juvenile case law and statutes because they are rooted in Positive Law, contrary to Natural Law (integration of law and morals, the original intent of the constitutional Framers and are therefore patently unconstitutional.

  4. Digitizing and Preserving Law School Recordings: A Duke Law Case Study

    Science.gov (United States)

    White, Hollie; Bordo, Miguel; Chen, Sean

    2015-01-01

    Written as a case study, this article outlines Duke Law School Information Services' video digitization, preservation, and access initiative. This article begins with a discussion of the case study environment and the cross-departmental evaluation of in-house video production and processing workflows. The in-house preservation reformatting process…

  5. Re: Mental health rehabilitation in therapeutic jurisprudence: Theoretical improvements.

    Science.gov (United States)

    Ferrazzi, Priscilla; Krupa, Terry

    2016-01-01

    Legal scholarship relevant to criminal court mental health initiatives that divert people with mental illness from prosecution to treatment has created the concept of therapeutic jurisprudence (TJ), an approach that seeks to maximize the law's potential for therapeutic outcomes. Despite recognition that TJ includes a rehabilitative response as a key animating principle and that it advocates for interdisciplinary synthesis, TJ has developed mainly from within the practice and discipline of law and without reference to the discipline of rehabilitation science, in which approaches to mental health rehabilitation (MHR) have witnessed significant developments in recent decades. In particular, concepts of MHR have shifted from a biomedical focus to a psychosocial approach, such as the recovery model, that incorporates values of self-determination, independence, and empowerment. It is argued that greater consideration of MHR will improve the theoretical validity of TJ by 1) helping define what 'therapeutic' means; 2) constructing a normative framework; and 3) broadening the scope of TJ as an interdisciplinary approach. More research is needed to ensure concepts from MHR rehabilitation science are considered in TJ legal scholarship and criminal court mental health initiatives. PMID:27107821

  6. 当法学与进化生物学相遇--进化法理学的兴起与展望%The Encounter of Jurisprudence with Evolutionary Biology:The Rise and Prospect of Evolutionary Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    刘春兴

    2012-01-01

      前达尔文时代的西方法理学就已存在某种朴素的法律进化思想,但直到19世纪进化论的确立才导致了进化法理学的诞生。早期研究主要集中于探讨法律进化理论,当前则侧重于进化论范式在具体法律问题中的应用以及一般进化法理学的构建等。尽管众多法学家认同法律进化的思想,但进化法理学作为一个法学流派却一直游离于西方法理学的中心地带之外。法律是一种文化现象,借鉴现代进化生物学在文化进化研究中取得的最新进展,构建基于文化进化的法律进化理论并以此为基础整合进化法理学,是进化法理学取得与其他进化社会科学类似成功的重要选择之一%  There had been some naïve evolutionary thoughts in Western jurisprudence before Darwinian times, and evolutionary jurisprudence did not come into being until the establishment of the theory of evolution in the nine⁃teenth century. At early stages it paid main attention to the discussion of theories of legal evolution, while these days it focuses on both the employment of evolutionary paradigm into specific legal issues and the construction of evolutionary jurisprudence in general. Although many legal theorists acknowledge the idea of legal evolution, evolu⁃tionary jurisprudence as a school of law has been beyond the mainstreams in Western jurisprudence. Law is one of cultural phenomena, which makes it likely for evolutionary jurisprudence to achieve success like that in other evolu⁃tionary social sciences to construct a theory of legal evolution based on cultural evolution and hence to integrate contemporary evolutionary jurisprudence with reference to the latest developments made by modern evolutionary bi⁃ology in the studies of cultural evolution.

  7. Laws and Stigma: the Case of Prostitution

    OpenAIRE

    Giovanni Immordino; Francesco Flaviano Russo

    2015-01-01

    We study the opinions on prostitution that emerged from the World Value Survey. We show that individuals tends to justify prostitution more in countries where it is legal or regulated and less in countries where it is prohibited, even after controlling for religious, cultural and sociological factors. To overcome the endogeneity of the policy to the opinions, we propose an instrumental variable strategy, instrumenting prostitution policy with legal origins. At least for the case of prostituti...

  8. Feminism, law, and bioethics.

    Science.gov (United States)

    Rothenberg, K H

    1996-03-01

    Feminist legal theory provides a healthy skepticism toward legal doctrine and insists that we reexamine even formally gender-neutral rules to uncover problematic assumptions behind them. The article first outlines feminist legal theory from the perspectives of liberal, cultural, and radical feminism. Examples of how each theory influences legal practice, case law, and legislation are highlighted. Each perspective is then applied to a contemporary bioethical issue, egg donation. Following a brief discussion of the common themes shared by feminist jurisprudence, the article incorporates a narrative reflecting on the integration of the common feminist themes in the context of the passage of the Maryland Health Care Decisions Act. The article concludes that gender does matter and that an understanding of feminist legal theory and practice will enrich the analysis of contemporary bioethical issues.

  9. Homicide committed by psychiatric patients: Psychiatrists' liability in Italian law cases.

    Science.gov (United States)

    Terranova, Claudio; Rocca, Gabriele

    2016-01-01

    Interest in psychiatrists' professional liability in Italy has increased in recent years because of the number of medical malpractice claims. Professional liability for failure to prevent violent behaviour by psychiatric patients is particularly debated. This study describes three Italian cases in which health professionals - physicians and nurses - were found guilty of manslaughter for murders committed by psychiatric patients. Examination of the cases focuses on claims of malpractice, patients' characteristics, the circumstances of the homicide and the reasons for the court's judgment. In particular, the predictability of violent behaviour and the concept of causal links are examined in detail. The cases provide an opportunity for a study of comparative jurisprudence. The topics discussed are relevant not only to practicing psychiatrists but also to experts assessing medical liability in cases of criminal acts committed by psychiatric patients. PMID:26130750

  10. Legal argumentation based on foreign law
    An example from case law of the South African Constitutional Court

    OpenAIRE

    Andrea Lollini

    2007-01-01

    This article aims to make some introductory remarks concerning the phenomenon of the circulation of ‘foreign law’ between constitutional courts. A convenient setting for some considerations regarding this legal phenomenon is the South African constitutional jurisprudence, since Section 39 of the 1996 Constitution enables the Constitutional Court to ‘consider foreign law’ when interpreting the Bill of Rights. This provision has led to the wide use of foreign jurisprudence and legislation, as w...

  11. Discrimination a rebours dans l'emploi: la jurisprudence sur les programmes d'action positive aux Etats-Unis.

    OpenAIRE

    Jones, J.E.

    1981-01-01

    ILO pub. Article reviewing supreme court jurisprudence on reverse racial discrimination in relation to employment opportunity and educational opportunity affirmative action programmes in the USA - comments on historical decisions and on passage of related civil rights legislation and labour legislation, and focuses on the ambiguity resulting from two major cases (defunis v. Odegaard, university of Washington, and bakke v. Regents, university of california). References.

  12. The General Unenforceability of Collective Agreements under Nigerian Labour Jurisprudence: The Paradox of Agreement without Agreement

    Directory of Open Access Journals (Sweden)

    Vincent Iwunze

    2013-12-01

    Full Text Available This study considers the status of collective agreements under Nigerian labour law, examining the extent of their enforceability under the extant laws. It considers the emerging trends in some more advanced jurisdictions of the world in that regard and comparatively portrays the anachronisms of the Nigerian law on the point. It takes the position that the current legal climate as regards the legal status of collective agreements under Nigerian law is potentially disruptive of industrial peace and harmony and is bound to occasion serious hardship on employees. The work suggests among others a jurisprudential shift in paradigm if the Nigerian labour jurisprudence must meet and be reflective of modern socio-economic realities.

  13. The Jurisprudence of "Brown" and the Dilemmas of Liberalism.

    Science.gov (United States)

    Horwitz, Morton J.

    1979-01-01

    Examines several dilemmas of liberal jurisprudence stemming from "Brown," and concludes that they stem, ultimately, from our uncertain commitment to equality. Available from William S. Hein & Co., Inc., 1285 Main St., Buffalo, NY 14209. (IRT)

  14. Beyond Bok: Historical Jurisprudence in Replacement of the Enlightenment Project.

    Science.gov (United States)

    Young, Stephen B.

    1985-01-01

    The approach taken by Derek Bok in his call for fundamental changes in the American legal system and in legal education is examined and contrasted with an approach based on historical jurisprudence. (MSE)

  15. Constitutional Values, Therapeutic Jurisprudence and Legal Education in South Africa: Shaping our Legal Order

    Directory of Open Access Journals (Sweden)

    Elmarie Fourie

    2016-04-01

    Full Text Available Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution.

  16. RTI: Court and Case Law--Confusion by Design

    Science.gov (United States)

    Daves, David P.; Walker, David W.

    2012-01-01

    Professional confusion, as well as case law confusion, exists concerning the fidelity and integrity of response to intervention (RTI) as a defensible procedure for identifying children as having a specific learning disability (SLD) under the Individuals with Disabilities Education Act (IDEA). Division is generated because of conflicting mandates…

  17. Toward instructional design principles: Inducing Faraday's law with contrasting cases

    Science.gov (United States)

    Kuo, Eric; Wieman, Carl E.

    2016-06-01

    Although physics education research (PER) has improved instructional practices, there are not agreed upon principles for designing effective instructional materials. Here, we illustrate how close comparison of instructional materials could support the development of such principles. Specifically, in discussion sections of a large, introductory physics course, a pair of studies compare two instructional strategies for teaching a physics concept: having students (i) explain a set of contrasting cases or (ii) apply and build on previously learned concepts. We compare these strategies for the teaching of Faraday's law, showing that explaining a set of related contrasting cases not only improves student performance on Faraday's law questions over building on a previously learned concept (i.e., Lorentz force), but also prepares students to better learn subsequent topics, such as Lenz's law. These differences persist to the final exam. We argue that early exposure to contrasting cases better focuses student attention on a key feature related to both concepts: change in magnetic flux. Importantly, the benefits of contrasting cases for both learning and enjoyment are enhanced for students who did not first attend a Faraday's law lecture, consistent with previous research suggesting that being told a solution can circumvent the benefits of its discovery. These studies illustrate an experimental approach for understanding how the structure of activities affects learning and performance outcomes, a first step toward design principles for effective instructional materials.

  18. Implications of Indian Supreme Court's Innovations for Environmental Jurisprudence

    OpenAIRE

    Geetanjoy Sahu

    2008-01-01

    This paper analyses the implications of innovative methods of the Indian Supreme Court for environmental jurisprudence to protect and improve the environment. Innovative methods are understood in terms of application and creation of new principle and structure for environmental jurisprudence. Through a series of innovative methods the Supreme Court of India has not only ensured fundamental right of citizen to healthy environment but also has contributed immensely to the evolution of new princ...

  19. Legal Responsibilities of nurses in Japan : Through Recent Law Cases

    OpenAIRE

    Yoshimura, Sadako

    1999-01-01

    Over the last 3-4 decades the roles of nurses have been changing and expanding, so that now they include duties in advanced hospitals and home-care. The trends in law cases and the amendments made to The Medical Act and the licensure for CNS in Japan have both been indications of these changing laws. These expanding responsibilities mean that nurses have needed, and will continue to need, to learn new skills in nursing and in the administration of machines. The nursing staff’s responsibilitie...

  20. Torture and Positive Law: Jurisprudence for the White House

    OpenAIRE

    Waldron, Jeremy

    2004-01-01

    Revelations of ill-treatment of prisoners by American forces at Abu Ghraib and the publication of memoranda showing that Bush administration lawyers have been seeking to narrow the application of the Convention against Torture and other similar provisions – these developments make it necessary for us to think afresh about the character and significance of the various legal prohibitions on torture. This paper argues that the prohibition on torture is not just one rule among others, but a...

  1. Producing a Tribal Citizenry Literate in Law and Jurisprudence

    Science.gov (United States)

    Wall, Stephen

    2015-01-01

    The relationship between American Indians and the U.S. federal government and state governments is complicated. It is a relationship that controls almost all aspects of tribal life and has resulted in American Indians being the most legislated people in the United States. For many years tribal people relied on non-Native attorneys to help navigate…

  2. THE SUBSIDIARY NATURE OF THE UNJUST ENRICHMENT ACTION. CONTRACT-BASED ACTION VS. ACTIO DE IN REM VERSO. JURISPRUDENCE SEPARATION ONLY

    Directory of Open Access Journals (Sweden)

    Eugenia VOICHECI

    2014-05-01

    Full Text Available For the purpose of recovering a paid amount within the insured sum, however, in addition to the owed amount, the insurer sues his client for claims. Does the insurer have, to this end, a cleared way towards unjust enrichment? The provisions of the 1864 Civil Code do not contain definitions of ex contractu and actio de in rem verso. The doctrine has established the acceptability requirements of actio de in rem verso, however, it did not do the same for ex contractu, and there is no notable change to this matter after the Civil Code became effective. This situation is also maintained in the current Law No.287/2009 on the Civil Code. Hence, the separation of the configuration and enforcement area of the two types of actions continues to be done in terms of jurisprudence by strictly relating to the case at hand. The study starts from an actual case the settling of which highlights the issue of determining the subsidiary nature, hence the acceptability of the unjust enrichment. The purpose of this study is to re/focus on an old dichotomy, i.e. the contract-based action (ex contractu and the action based on an licit deed, that of unjust enrichment (actio de in rem verso. The primary goal of the study consists of highlighting the aspects that the provisions of the 1864 Civil Code and those of the new Civil Code have in common or not in terms of the two types of actions before the court, the doctrine-related solutions given as concerns the characteristics and legal status of the two actions and the fact that, in the nex Civil Code as well, the separation line between the two actions is determined on the basis of jurisprudence, being left at the judges' discretion and wisdom, with all related consequences thereof.

  3. Can Law Become Curricula's Guidance Counselor?

    Science.gov (United States)

    Goslin, Kimberly G.

    2008-01-01

    This article asserts that curricula, a living text, ought to take into consideration the virtues of fairness, justice, and integrity as found in law, in order to judge controversial issues of curriculum. This assertion is argued through a comparison of jurisprudence and pedagogy, as well as law and curricula. Dworkin's (1986) contention of "law as…

  4. A Law of Physics in the Classroom: The Case of Ohm's Law

    Science.gov (United States)

    Kipnis, Nahum

    2009-01-01

    Difficulties in learning Ohm's Law suggest a need to refocus it from the law for a part of the circuit to the law for the whole circuit. Such a revision may improve understanding of Ohm's Law and its practical applications. This suggestion comes from an analysis of the history of the law's discovery and its teaching. The historical materials this…

  5. [Recent case law about the right to die].

    Science.gov (United States)

    Bascuñán R, Antonio

    2016-04-01

    This paper reviews the sentences dictated between 1993 and 2002 by the Supreme Courts of Canada and the Unites States, the House of Lords and Supreme Court of the United Kingdom and the European Human Rights Court, about the validity of the legal prohibition of assistance for suicide. These sentences constituted a judicial consensus about the right to die. This consensus recognized the legal right of patients to reject medical treatments but did not recognize the right to be assisted by a physician to commit suicide. This exclusion is changing in the recent case law of Canada and the United Kingdom, which accepts the fundamental right of terminal patients to medically assisted suicide.

  6. Book Review: EU External Relations Law: Text, Cases and Materials

    Directory of Open Access Journals (Sweden)

    Graham Butler

    2014-06-01

    Full Text Available This latest textbook contributing to the field of EU external relations law is unique in that it is the first such book in the post-Treaty of Lisbon environment to take a wide-angled look on as many aspects of the growing area as it continues to develop within the legal parameters as set by the Treaties, and it is suitably placed to become the core text for teaching this expanding EU policy field. In their book, EU External Relations Law: Text, Cases and Materials, Van Vooren and Wessel seek to fill the gap in up-to-date literature from a legal standpoint in the field of external relations of the EU, with a book that is suitable for delivery as a core textbook for students of all levels. Their analysis covering fifteen long chapters offers the reader a comprehensive insight into the world of EU external relations law, and allows for a thoroughly better understanding of all the encapsulated issues that are at play.

  7. International Law and the Society of Nations: An Introduction to Public International Law in the 1990s. Cases and Materials.

    Science.gov (United States)

    King, Jason Scott, Ed.; Scurti, Jason, Ed.; And Others

    This casebook on international law was developed by high school students around the globe and emphasizes the important role that students can play in furthering international law education. The text provides teachers and students with a summary review of 25 major cases heard by the International Court of Justice, along with additional materials.…

  8. THE RIGHT TO AN INDEPENDENT COURT OF LAW. THEORETICAL ASPECTS. THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW

    Directory of Open Access Journals (Sweden)

    Mircea DAMASCHIN

    2011-08-01

    Full Text Available International specialized literature approaches the concept of court of law from two perspectives: on the one hand, this concept refers to the court of law, regarded as a key linking element within the unitary judicial system, and, on the other hand, to the panel of judges, regarded as the main subject of the criminal procedure, i.e. the judges who take part in trying a criminal case. In a criminal case, the court of law plays the most important role and its main attribute is the function of jurisdiction, which represents the sum of powers granted to a magistrate for the administration of justice. The court of law plays a significant role in the rule of law state; thus, both at national and international level, attempts are made in order to set up a legal framework consisting of norms issued by national lawmakers or by official international institutions or by some magistrate associations or NGOs. All these efforts are meant to underline the significant role that the judiciary plays in a rule of law democratic society. In this study we shall try to analyse the concept of “independent court of law”, as this is presented in the national system of law, in its specific norms that are provided by international normative acts and in the principles deriving from the ECHR case-law.

  9. Criminal law in the Bible

    Directory of Open Access Journals (Sweden)

    Pikov, G.

    2010-01-01

    Full Text Available The Old Testament criminal law, especially its moralizing attitude to state and private violence, crime and punishment, can be ranked among the most important sources of Medieval and Modern jurisprudence. The article analyses basic cultural preconditions of the formation and evolution of Judeo-Christian legal theory, peculiarities of criminological thinking in Judaism and Christianity, causes and effects of the fundamental ties between religion and law in traditional societies, and possible convergence of Mosaic and Modern criminal law.

  10. Narrative Jurisprudence and Other Heresies: Legal Education at the Margin.

    Science.gov (United States)

    Friedrichs, David O.

    1990-01-01

    Although personal narrative is a traditional and pervasive form of discourse, it is no longer the standard form of discourse in legal education. However, an emerging narrative jurisprudence suggesting inherent limitations of formal doctrinal and empirical analysis and promoting the legitimacy of the personal account, challenges this situation.…

  11. Law before Gratian

    DEFF Research Database (Denmark)

    This volume, the third in the series, contains the proceedings of the conference 'Law before Gratian' and covers a wide range of topics from individual and local studies to broader reflections on the status and function of law in medieval European societies before the scholastic legal 'revolution......' of the later twelfth century. Seeking to broaden our view of what constituted law in this period, the articles examine these earlier developments in their own right and provide new insights into the variety and complexity of early and high medieval approaches to law and jurisprudence. Contributors...

  12. Stranger in a strange land: the use of overbreadth in abortion jurisprudence.

    Science.gov (United States)

    Martin, K

    1999-01-01

    Plaintiffs seeking to avoid prosecution under an allegedly unconstitutional statute can ask a court to do one of two things: award facial relief, in which case any enforcement of the offending statutory provision is enjoined, or award as-applied relief, in which case enforcement of the provision against the plaintiff is enjoined, but officials may attempt to apply the statute to others. As-applied relief might also take the form of partial facial invalidation: The provision may not be applied to others similarly situated to the plaintiff. In United States v. Salerno, the Court ruled that judges should only provide total facial invalidation if there is "no set of circumstances" under which the statute could be applied consistent with the Constitution. This general rule, however, has had a historical exception for First Amendment jurisprudence, known as the overbreadth doctrine, and more recently Planned Parenthood v. Casey extended a similar exception to abortion jurisprudence. Most literature has been supportive of this extension, and some have suggested replacing the Salerno rule with the Casey rule as a general matter. This Note argues that the reasons given for the Casey exception are unpersuasive, that Salerno as a matter of history and doctrine is the correct rule to apply to facial challenges, and for that reason that Salerno should remain the general rule and Casey's "large fraction" test should be eliminated.

  13. Recognition in international law: The case of Kosovo and Metohija

    Directory of Open Access Journals (Sweden)

    Šurlan Tijana

    2015-01-01

    Full Text Available Recognition is an instrument of the public international law founded in the classical international law. Still, it preserves its main characteristics formed in the period when states dominated as the only legal persons in international community. Nevertheless, the instrument of recognition is today as vibrant as ever. As long as it does not have a uniform legal definition and means of application, it leaves room to be applied to very specific cases. In this paper, the instrument of recognition is elaborated from two aspects - theoretical and practical. First (theoretical part of the paper presents main characteristics of the notion of recognition, as presented in main international law theories - declaratory and constitutive theory. Other part of the paper is focused on the recognition in the case of Kosovo. Within this part, main constitutive elements of state are elaborated, with special attention to Kosovo as self-proclaimed state. Conclusion is that Kosovo does not fulfill main constitutive elements of state. It is not an independent and sovereign state. It is in the status of internationalized entity, with four international missions on the field with competencies in the major fields of state authority - police, judiciary system, prosecution system, army, human rights, etc. Main normative framework for the status of Kosovo is still the UN Resolution 1244. It is also the legal ground for international missions, confirming non-independent status of Kosovo. States that recognized Kosovo despite this deficiency promote the constitutive theory of recognition, while states not recognizing Kosovo promote declaratory theory. Brussels Agreement, signed by representatives of Serbia and Kosovo under the auspices of the EU, has also been elaborated through the notion of recognition - (1 whether it represents recognition; (2 from the perspective of consequences it provokes in relations between Belgrade and Pristina. Official position of Serbian

  14. Accessing Legal Information in Catalonia. Open Acces to Legislation and Case Law

    OpenAIRE

    Morante Vallejo, Montse; Sanpera Izoard, Patrícia

    2013-01-01

    The article outlines free online legal resources to conduct research on Catalan and Spanish legislation and case-law. Most of these resources are primary sources made public by government bodies. The list shows how the Spanish and Catalan governments, in their attempt to promote equal access to legislation and case-law, cover the different jurisdictions. The text also mentions some resources to conduct historical legal research about legislation and case law, and some free legal private websi...

  15. "Supreme Court: Enemy of Freedom?" Constitutional Law in Christian School Textbooks.

    Science.gov (United States)

    Paterson, Frances R. A.

    2000-01-01

    Examines the view of the law presented to American students enrolled in Christian schools by analyzing how the textbooks used by a significant number of Christian schools treat the constitutional jurisprudence of the Supreme Court. (Contains 177 footnotes.) (MLF)

  16. Categories of Rulings on Compensation and Reparation in the International Investment Arbitration : A tentative reclassification of cases (Japanese)

    OpenAIRE

    TAMADA Dai

    2008-01-01

    In this paper I treat some leading rulings on compensation and reparation in the jurisprudence of international investment arbitrations, for the purpose of clarifying the trend of judgment upon the damage valuation criteria and methods. The recent discussion on the investment arbitration cases puts too much emphasis on various standards in substantive law, for example, expropriation, fair and equitable treatment obligation, most-favored-nation treatment obligation, and national treatment obli...

  17. Aspects from European Court of Justice case-law on equal treatment as regards dismissal

    Directory of Open Access Journals (Sweden)

    Cătălina-Adriana IVĂNUŞ

    2013-12-01

    Full Text Available Equal treatment between women and men is a fundamental right, a general principle of EU law. In European Court of Justice case-law and in European law were treated different aspects of discrimination on grounds of sex. Principle of equal treatment between women and men applies to remuneration, access to employment, vocational training and promotion, and working conditions, but it is equally applied to dismissal. Among the issues covered by European law on equal treatment between women and men, in this article I will examine only the European Court of Justice case-law on dismissal.

  18. Law related to management of natural resources And the determination of Its environment

    OpenAIRE

    VISHAWAS CHOUHAN

    2012-01-01

    With the help of my article I am discovering hypothesis about the law related to management of natural resources and present environment law & critical analysis of its environment effect. It is my belief that is root of origin of “Law” or origin of “Statutes” in world the main reason was the management of natural resources. On this basis it is necessary to add a new branch – Environment School of Jurisprudence in the branches of Jurisprudence.

  19. Law

    OpenAIRE

    Mathis, J.H.

    2012-01-01

    The World Trade Review asked distinguished scholars from the three different fields of economics (Pravin Krishna), political science (Edward D. Mansfield) and law (James H. Mathis) to independently review the WTO's annual World Trade Report for 2011, the theme of which is The WTO and Preferential Trade Agreements: From Co-Existence to Coherence.

  20. Moral Law and Political Law in Greek Mythology: The Case of Prometheus

    Directory of Open Access Journals (Sweden)

    Domingo Fernández Agis

    2006-12-01

    Full Text Available The aim of this work is to offer the reader a tour through the most significant interpretations of the Prometheus myth, attempting to contribute  from their standpoint to the clarification of the relationship between moral law and political law. In especial, it aims to highlight in Prometheus’s attitude something that betrays the presence of a strongly individualized conscience, whose dictates lead him to clash with power in its highest expression. On the other hand, different interpretations of the Greek concept of law are examined, where its highest expression is indebted to the idea of destiny. Based on Law, a common order that connects gods and humans is established, although not with the same degrees of subjection.

  1. Cases and Materials on Women and the Law for GS 200: Introduction to Women's Studies.

    Science.gov (United States)

    Knowles, Marjorie Fine, Ed.

    Cases and materials used in an undergraduate course, "Women and the Law," are divided to cover women and the Constitution of the U.S. (including the Equal Rights Amendment), the Supreme Court Abortion Decision, and the contemporary legal status of women including employment, education, and criminal law. Fifteen cases highlight the issues…

  2. 自由女性主义法学之权利观%The View of Right About Liberal Feminism Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    曹智

    2015-01-01

    自由女性主义法学汲取自由主义法学和自由女性主义的权利范式,将赋予女性与男性同等的法律权利作为理论策略,着重寻求公共领域的平等参与权。《平等权利修正案》虽然内外受阻,但仍充足地表达出自由女性主义法学之权利的真意与要旨。自由女性主义法学的权利主张卓有成效地改善了女性权益,但存在简单扩张自由主义法学的局限。%In order to focus on seeking the public areas of the equal right of participation,liberal feminism jurisprudence has derived the law of liberalism and liberal feminist rights paradigm,regarding women’ s equal rights as the theoretical strategy.The rights meaning and essence of liberal feminism jurisprudence had expressed sufficiently byThe Equal Rights Amendment,in spite of the multiple internal and external resistance.Women's rights and interests obtained effective improvement from claim for rights of liberal feminism jurisprudence, in the meantime,there is limitation about simple expansion of the law of liberalism.

  3. The Recent Case Law on Locus Standi of Private Applicants under Art. 230 (4 EC: A Missed Opportunity or A Velvet Revolution?

    Directory of Open Access Journals (Sweden)

    Constantinos Kombos

    2005-12-01

    Full Text Available The theme of the article is the ECJ's approach to the standing of private applicants in actions of annulment. The analysis places the emphasis on the Opinions by AG Jacobs and the rulings of the CFI and the ECJ in UPA and Jégo-Quérè and on the limited changes proposed under the Draft Constitution. The argument of the paper is that the critique presenting the preceding line of decisions as a missed opportunity is partly unfounded and partly misplaced for two main reasons. Firstly, the nature of the debate has now changed with the introduction of the right to effective judicial protection and secondly, the existing critique is not reflective of the multidimensional and complex nature of interacting factors that influence the strategic positioning of the ECJ in areas of specific constitutional significance. Therefore, the analysis concentrates on the factors that could provide the exegetical and not necessarily the justifying rationale for the persistently restrictive approach of the ECJ in the area of standing. It is submitted that the recent case law is an integral part of the calculated strategic positioning of the ECJ that was inevitable. The inevitability is founded on three reasons. Firstly, on the nature and significance of effective judicial protection and the central role that it was given by AG Jacobs and the CFI in UPA and Jégo-Quérè respectively. Secondly, the departure from the jurisprudence was driven from below rather than from the ECJ and finally, the chronology was such that coincided with the workings of the Convention on the Future of Europe. These new elements represent an attempted Velvet Revolution rather than a missed opportunity.

  4. Abuse of Law in European Tax Law: An Overview and Some Recent Trends in the Direct and Indirect Tax Case Law of the ECJ - part 2

    NARCIS (Netherlands)

    D. Weber

    2013-01-01

    This article examines the right of Member States to combat abuse, as defined in ECJ case law, in particular, the balance between enforcement of the principle of legal certainty, the right to choose the most favourable fiscal route and the right of states to combat tax avoidance. Part 1, which was pu

  5. Abuse of Law in European Tax Law: An Overview and Some Recent Trends in the Direct and Indirect Tax Case Law of the ECJ - part 1

    NARCIS (Netherlands)

    D. Weber

    2013-01-01

    This article examines the right of Member States to combat abuse, as defined in ECJ case law, in particular, the balance between enforcement of the principle of legal certainty, the right to choose the most favourable fiscal route and the right of states to combat tax avoidance. Part 1 addresses the

  6. Law and Order or Global Disorder

    OpenAIRE

    Bidzina SAVANELI

    2013-01-01

    Substantial problem of Humankind is at the junction of Philosophy, Sociology and Jurisprudence. Based on my attempt to harmonize philosophies of Kant, Hegel and Husserl, and studies of famous legal scholars Bentham, Ostin, Holmes, Kelsen, Ehrlich, Reinach, Hart, Llevellin, Kardozo, David, Dworkin, Rawls concerning the problems of public law, private law, comparative law, justice, human rights, post-modernism, and Georgian philosophical, sociological and legal traditions since XII century, I d...

  7. Between disorder and order: A case study of power law

    Science.gov (United States)

    Cao, Yong; Zhao, Youjie; Yue, Xiaoguang; Xiong, Fei; Sun, Yongke; He, Xin; Wang, Lichao

    2016-08-01

    Power law is an important feature of phenomena in long memory behaviors. Zipf ever found power law in the distribution of the word frequencies. In physics, the terms order and disorder are Thermodynamic or statistical physics concepts originally and a lot of research work has focused on self-organization of the disorder ingredients of simple physical systems. It is interesting what make disorder-order transition. We devise an experiment-based method about random symbolic sequences to research regular pattern between disorder and order. The experiment results reveal power law is indeed an important regularity in transition from disorder to order. About these results the preliminary study and analysis has been done to explain the reasons.

  8. Religious Law Schools and the First Amendment.

    Science.gov (United States)

    Noonan, John T., Jr.

    1993-01-01

    It is proposed that the values and environment of a church-related law school differ from those of secular institutions because of the religious orientation of faculty and students, and fostering such an institution is religious freedom, now threatened by accreditation rules and current First Amendment jurisprudence. (Author/MSE)

  9. Cultural, social and economic rights in the Constitution corpus and Constitutional Court’s Case Law

    Directory of Open Access Journals (Sweden)

    Patricio Rubio

    2013-12-01

    Full Text Available This article deals with Cultural, Social and Economic Rights established in the Constitution and in Constitutional Case Law. So, after explaining its nature, state’s role according preservation and enforceability,relationship with other fundamental rights, among other key points, it isi ntended to answer, dealing with those rights, which of two scenarios have prevailed: internationalization of constitutional law or constitutionalization of international law.

  10. European Law in the Making:

    DEFF Research Database (Denmark)

    Rasmussen, Morten

    Gend en Loos and Costa V. ENEL. The jurisprudence of the Court of Justice of the ECSC was allegedly conservative dominated by technical and economic considerations less than adventurous activism. Recent historical research has demonstrated the complexity of the legal landscape of the 1950s, in which...... the legal service of the High Authority from early on promoted a ‘constitutional’ interpretation of European law, but where the member state, as well as most legal experts, still considered European law a subset of international law. How did the Court of Justice of the ECSC manoeuvre between...... on European law in the making....

  11. Role of the case law to ensure judicial power

    Directory of Open Access Journals (Sweden)

    Pesudovs A.

    2014-01-01

    Full Text Available The research substantiates the need for uniform court practice, by underscoring the importance of it in complying with uniform administration of justice, increase of procedural economy and effectiveness, and ensuring indivisibility of judicial power. Practical part of the research is constituted by study of the practice of the application of laws in the judicial system of the Republic of Latvia. Focus is on the decisions on undisputed compulsory execution of obligations. For more objective substantiation of the problem also other adjudications are analysed with regard to essential civil law matters.

  12. MMOGs as Social Experiments: the Case of Environmental Laws

    CERN Document Server

    Broekens, Joost

    2008-01-01

    In this paper we argue that Massively Multiplayer Online Games (MMOGs), also known as Large Games are an interesting research tool for policy experimentation. One of the major problems with lawmaking is that testing the laws is a difficult enterprise. Here we show that the concept of an MMOG can be used to experiment with environmental laws on a large scale, provided that the MMOG is a real game, i.e., it is fun, addictive, presents challenges that last, etc.. We present a detailed game concept as an initial step.

  13. CASE-LAW ASPECTS CONCERNING THE REGULATION OF STATES OBLIGATION TO MAKE GOOD THE DAMAGE CAUSED TO INDIVIDUALS, BY INFRINGEMENTS OF EUROPEAN UNION LAW

    Directory of Open Access Journals (Sweden)

    ROXANA-MARIANA POPESCU

    2012-05-01

    Full Text Available The priority principle of EU law in relation to the internal law of the Member States, a principle enshrined by the Court of Justice case-law and the principle of direct effect allow the national court to give full effect to EU law. Breaching the EU law by Member States draws under certain conditions their responsibilty for the breach thereof. Unlike public international law, the constitutive treaties do not contain provisions relating to liability of Member States for breach of EU law. As in other cases, the Court was the one that, over time, has defined a right of redress, which has its foundation in EU law and in the conditions necessary to engage the victims' right to repair.

  14. 有别于法理学的法哲学探源%On Legal Philosophy Distinguished from Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    黄杨

    2012-01-01

    从自然哲学中分化出来的法哲学作为"正义的学说",不但是对"法应当是什么"或"正当法"的问题的讨论和追问,不只是回答什么是"正义"(正当法),而是探究如何才能甄别并实现正当法。这种充满主体性及形而上的法哲学有别于"法律教义学"(法律释义学或法律解释学)——法理学。作为实在法理论的法律教义及其解释学不是"学问",即不是学理探源与追问,而是"学术",即学理释义和致用。法哲学及其"应然"的自然性不应该是实在法学及其判例的研究内容,而是形而上的"学问"。作为一门形而上"学问"的法哲学不是法学分支学科,而是哲学的一个分支学科。%As a branch of natural philosophy,the legal philosophy is the science of justice,not only an discussion about and an exploration into the question of "what ought the law to be",answering the question of "what is justice(the ought-to-be law)",but also a probe into how to identify and realize the ought-to-be law.The legal philosophy,due to its subjectivity and metaphysics,is different from jurisprudence,i.e.legal dogmatics,or legal interpretation.The legal dogmatics as positive jurisprudence is not academic,not an inquiry into the origin of law,but a learning,or an interpretation of the legal doctrines and their application.Legal philosophy,together with its nature of ought-to-be,should not be the subject of positive jurisprudence research and judicial practice,but a metaphysical study,a branch of philosophy instead of a branch of law.

  15. Professional service operations management: the case for leaner law

    OpenAIRE

    Reid, Iain; Bamford, David

    2016-01-01

    This paper examines lean thinking within legal service network (client, solicitors, barristers, external parties, and judiciary) in order to develop a theoretical framework for Leaner Law. Resource Based View (RBV) is used as the core theoretical framework to address leanness in the eight UK legal service disciplines. The purpose of this paper is to trace the value add through the legal profession.

  16. Educating Medical Students about Law and the Legal System.

    Science.gov (United States)

    Williams, Peter C.; Winslade, William

    1995-01-01

    It is argued that the medical school curriculum should include content on jurisprudence to empower physicians to use the law and their legal colleagues to serve patients and promote public welfare. Developing practitioners' skills and changing attitudes are seen as more important than imparting information about particular doctrines and laws. (MSE)

  17. Recent Legislation and Case Law in the EEC on Sex Equality in Employment.

    Science.gov (United States)

    Landau, C. E.

    1984-01-01

    Examines recent progress under European Economic Community (EEC) and national law towards equality of opportunity and treatment in employment. The first part deals with decisions of the EEC Court of Justice; the second part depicts legislation and case law in the 10 member countries. (SK)

  18. Sex-Reassignment Rules in Shiite Jurisprudence

    Science.gov (United States)

    Kalbasi-Isfahani, Fahimeh; Deleer, Mohsen

    2016-01-01

    Background: The “Sex-Reassignment Surgery” is a solution that besides behavioral therapy has been suggested to people suffering from gender identity disorders in recent years. In Iran, this trend has become more popular over the past years due to the inclination to reach to the goal rapidly with less effort and also the surgery has attracted many patients with the problem. Religious clerics have tried to determine the religious doctrines for this practice and as a result a group of them favor an absolute permission while others choose prohibition and some of them favor a middle path. The aim of this study was to determine the religious doctrines for Sex-Reassignment and legitimate treatment for GID. Methods: The research method was a library research based on which an investigation was done by analyzing the relevant books, articles and dissertations. Primary documents of Islamic sources (Quran and tradition) along with scientific, medical and psychological materials were used in this research. Results: In this study, the survey shows that none of the reasons have the power to deliver a definitive and religious ruling on this issue because the validity of its reasons is related to the reality of “Sex-Reassignment”. Conclusion: The results demonstrate that Sex-Reassignment is prohibited and it is not authorized. In case of urgency for doing the surgery, the gender of the person should not be changed. PMID:27478771

  19. The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases

    NARCIS (Netherlands)

    Giesen, Ivo

    2012-01-01

    In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its

  20. Employment Discrimination in Higher Education--A Review of the Case Law from 2000.

    Science.gov (United States)

    Bodensteiner, Jill

    2002-01-01

    Reviews employment discrimination cases in higher education in 2000, which included an overwhelming number of retaliation and denial of promotion to tenure claims; case law also included age discrimination, religious discrimination, and sexual harassment issues, and a handful of wage discrimination cases. Courts also continued to explore the…

  1. Law and psychiatry in America over the past 150 years.

    Science.gov (United States)

    Quen, J M

    1994-10-01

    American forensic psychiatry was founded in 1838 with the publication of Isaac Ray's Treatise on the Medical Jurisprudence of Insanity. Ray's ideas were influential in the early history of forensic psychiatry but were overlooked in the formulation of the M'Naghten Rules in England, an early parliamentary effort to define criteria for the insanity defense. In the mid-1800s, asylum-based psychiatrists formulated model laws addressing involuntary commitment and debated the definition of mental illness for legal purposes. In the late 1800s, courts became interested in findings of brain pathology in insanity defense cases, and neurologists joined psychiatrists as expert witnesses. Beginning around 1950, increased judicial activism led to a new standards for insanity in criminal cases, advances in the civil rights of mentally ill persons, and refinements in the role of expert witnesses. In 1969 forensic psychiatrists established a professional organization, and board certification in the subspecialty began in 1979.

  2. Reversing the historical tide of iatrogenic harm: A therapeutic jurisprudence analysis of increases in arrests of domestic batterers and rapists.

    Science.gov (United States)

    Simon, Leonore M J; Ellwanger, Steven J; Haggerty, John

    2010-01-01

    Therapeutic jurisprudence (TJ) proposes that the law is a social force that can heal or cause harm to parties in a legal action. Historically, women victims of intimate partner rape and domestic violence could not seek justice in the legal system because police, like other actors in the justice system, treated these offenses as private matters or fabrications. In domestic violence and intimate rape cases, TJ is concerned with the needs of the victims, and how the law and police play a role in increasing their well-being. In this article, we use a TJ approach to the study of police responsiveness to victims of these offenses by investigating arrests of the offenders pursuant to law reforms that encourage or mandate arrest. Given that in these offenses, victims have the lowest reporting rates of any violent crime, the victim decision to call the police represents an expectation that the mere physical presence of a police officer may redefine the nature of the violence from a private conflict to a societal wrong that will not be tolerated. Police partnership with and treatment of the victim with respect and dignity can change the dynamics of the violence, terminate the violence, and set the criminal justice process in motion by arresting the offender in most cases. Police arrest, and subsequent prosecution and conviction, sends a message to offenders that society does not tolerate their violence, and allows the victim to begin to heal. Yet, past research indicates that police are less likely to arrest intimates than acquaintances and strangers in misdemeanor and aggravated assault, rape, and sexual assault cases. Using the National Incidence Reporting System (NIBRS) for the year 2000, we examine police arrests of intimate partner rape and domestic violence in jurisdictions with mandatory and presumptive arrest policies compared to police arrests in full discretion jurisdictions. We also ascertain whether arrest rates are higher for strangers and acquaintances than for

  3. REFLEXÕES TEÓRICO-METODOLÓGICAS SOBRE A CIÊNCIA JURÍDICA E SEU OBJETO / THEORETICAL AND METHODOLOGICAL REFLECTIONS ON JURISPRUDENCE AND HIS SUBJECT

    Directory of Open Access Journals (Sweden)

    Luis Fernando Sgarbossa

    2015-04-01

    Full Text Available The present article proposes to problematize, from an interdisciplinary dialog that focuses on the fields of Anthropology, History and Sociology, the object and the methods of contemporary Jurisprudence, looking for the redeeming of the value of thoughts from authors such as Eugen Ehrlich and Julius Hermann Von Kirchmann. The article makes some critical reflections on the reductionist conception of law based on positivism, in legalism and statism, advocating a broad concept of law, recognized as a rich human and social phenomenon. On the basis of the thought of Paolo Grossi, it proposes a ransom of ordinamental vision of law, in place of merely compulsory existing conception. The study presents a criticism to the purely technological approach of law, for the sake of a methodological reset that boosts the juridical science, and argues that the withdrawal of myths, as the legal monism, may contribute to the future Jurisprudence not to succumb in front of the strict positivism, the officialism and the strict technicality.

  4. From the American Civil War to the War on Terror: Three Models of Emergency Law in the United States Supreme Court

    DEFF Research Database (Denmark)

    Hartz, Emily

    This book offers a systematic and comprehensive account of the key cases that have come to shape the jurisprudence on emergency law in the United States from the Civil War to the War on Terror. The legal questions raised in these cases concern fundamental constitutional issues such as the status...... of fundamental rights, the role of the court in times of war, and the question of how to interpret constitutional limitations to executive power. At stake in these difficult legal questions is the issue of how to conceive of the very status of law in liberal democratic states. The questions with which...... the Supreme Court justices have to grapple in these cases are therefore as philosophical as they are legal. In this book the Court's arguments are systematized according to categories informed by constitutional law as well as classic philosophical discussions of the problem of emergency. On this basis...

  5. LAW, THE LAWS OF NATURE AND ECOSYSTEM ENERGY SERVICES: A CASE OF WILFUL BLINDNESS

    Directory of Open Access Journals (Sweden)

    DR Hodas

    2013-06-01

    Full Text Available Ecosystems services include the collection, concentration, and storage of solar energy as fossil fuels (e.g., coal, petroleum, and natural gas. These concentrated forms of energy were produced by ancient ecosystem services. However, our legal and economic systems fail to recognise the value of the ecosystem service subsidies embedded in fossil fuels. This ecosystem services price subsidy causes overuse and waste of fossil fuels in the free market: fossil fuels are consumed more quickly than they can be replaced by ecosystem services and in far larger quantities than they would be if the price of fossil fuels included the cost of solar energy collection, concentration and manufacturing of raw fossil fuels. Moreover, burning fossil fuels produces enormous environmental, human health and welfare costs and damage. Virtually no legal literature on ecosystem services, sustainable development, or sustainable energy, considers fossil fuels in this context. Without understanding stored energy as an ecosystem service, we cannot reasonably expect to manage our fossil fuel energy resources sustainably. International and domestic energy law and policy systems generally ignore this feature of fossil fuel energy, a blind spot that explains why reducing greenhouse gas emissions from fossil fuels is fundamentally a political challenge. This paper will use new understandings emerging from the field of complex systems to critique existing legal decision-making models that do not adequately account for energy ecosystem services in policy design, resource allocation and project approvals. The paper proposes a new "least-social-cost" decision-making legal structure that includes ecosystem energy services.

  6. INTERNATIONAL LAW AND INTERNATIONAL ORGANIZATIONS: THE LEGACY OF THE TWENTIETH CENTURY

    OpenAIRE

    PARISH MATTHEW

    2014-01-01

    The growth in international law is not just a matter of an ever-increasing number of treaties. There has also been a considerable growth in what is known as "customary international law" being the writings of scholars, principles of international law that grow out of the jurisprudence of international courts and tribunals, and the writings of international organizations themselves. Like all forms of law, international law is susceptible to interminable growth. Unlike other branches of law, it...

  7. The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases

    Directory of Open Access Journals (Sweden)

    Ivo Giesen

    2012-05-01

    Full Text Available In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.

  8. A Day at the Beach: A Multidisciplinary Business Law Case Study

    Science.gov (United States)

    Rymsza, Leonard; Saunders, Kurt; Baum, Paul; Tontz, Richard

    2010-01-01

    This case study, written for use in a multidisciplinary course, exposes students to concepts in business law, economics, and statistics. The case is based upon a hypothetical scenario involving a young woman who, having spent a relaxing day at the beach, heads for home. On the drive home, a flip-flop she is wearing becomes lodged under the gas…

  9. Mandatory Arrest Law in domestic violence cases and its implementation in New York City

    Directory of Open Access Journals (Sweden)

    Milivojević Sanja K.

    2002-01-01

    Full Text Available This paper contains the analysis of the Mandatory Arrest Law in domestic violence cases in New York State. Introduction includes the subject and main goals of the paper. Second chapter starts with historical development of the police response in domestic violence cases in New York before and after the Mandatory Arrest Law is passed, than analysis of the Law, and ends with one of the programs which Safe Horizon, Victim Service organization, developed in New York City. Third chapter gives the analysis of pro et contra arguments for mandatory arrest provision and results of surveys and studies, which were conducted in United States. In fourth chapter we present the analysis of the research conducted in two police precincts in New York City this year. Paper also contains the list of main problems in implementation of this Law in New York City.

  10. CASES OF INDIRECT EXPROPRIATION IN INTERNATIONAL ECONOMIC LAW

    Directory of Open Access Journals (Sweden)

    LAURA-CRISTIANA SPATARU-NEGURA

    2012-05-01

    Full Text Available Unforeseen difficulties arise along with the government measures whose object is not to expropriate or to nationalize the foreign investment, but to deprive the foreign investors of the rights attached to their investments. These measures are generally known as measures of indirect expropriation or nationalization. When asked about what falls into the concept of indirect expropriation, a simple answer can not be given easily, but the circumstances in which these measures may occur can be described and discussed. These measures could be grouped as follows: forced sale of property; forced sales of shares of an investment through a corporate vehicle; indigenization measures; taking control of investment management; determination of others to take physical property; failure to provide protection when there is interference with the foreign ownership; administrative decisions that cancel licenses and permits required for foreign businesses to operate in the host state; exorbitant taxation; the expulsion of the foreign investor contrary to the international law; harassment (e.g. freezing of the bank accounts. This paper therefore argues that in practice there are many situations which may be analysed as measures of indirect expropriation.

  11. DEVELOPMENT OF CHINESE HEALTH LAW: OVERVIEW AND SUGGESTIONS.

    Science.gov (United States)

    Liu, Kai; Tang, Daolu

    2014-07-01

    Health law is a rapidly developing law specialty in China. This article examines the current overall framework and evolution of Chinese health law, as a background to an analysis of the advantages and disadvantages of this legal regime. Research suggests that: 1) The independent status of Chinese health law as jurisprudence and a specialty ought to be assured altogether; 2) The convergence between health law and other laws should be strengthened; 3) The current Chinese health law framework ought to be completed. This suggests the necessity to find ways to improve the independence of health law in China by eliminating the convergence and completing the legal framework.

  12. Recent Cases: Administrative Law--Occupational Safety and Health Act

    Science.gov (United States)

    Harvard Law Review, 1976

    1976-01-01

    Implications of the Occupational Safety and Health Act of 1970 are described in two cases: Brennan v. Occupational Safety and Health Review Commission (Underhill Construction Corp.), and Anning-Johnson Co. v. United States Occupational Safety and Health Review Commission. (LBH)

  13. Application of generalized Snoek's law over a finite frequency range: A case study

    Science.gov (United States)

    Rozanov, Konstantin N.; Koledintseva, Marina Y.

    2016-02-01

    Generalized Snoek's law proposed in an integral form by Acher and coauthors is a useful tool for investigation of high-frequency properties of magnetic materials. This integral law referred to as Acher's law allows for evaluating the ultimate performance of RF and microwave devices which employ magnetic materials. It may also be helpful in obtaining useful information on the structure and morphology of the materials. The key factor in practical application of Acher's law is an opportunity to employ either measured or calculated data available over a finite frequency range. The paper uses simple calculations to check the applicability of Acher's law in cases when the frequency range is limited and the magnetic loss peak is comparatively wide and has a distorted shape. The cases of large magnetic damping, pronounced skin effect, and inhomogeneity of the material are considered. It is shown that in most cases calculation of the integral through fitting of actual magnetic frequency dispersion by the Lorentzian dispersion law results in accurate estimations of the ultimate high-frequency performance of magnetic materials.

  14. 经验和实用主义的展现--对美国早期社会学法学的思考%Experience and pragmatism---On the early sociological jurisprudence of the United States

    Institute of Scientific and Technical Information of China (English)

    蔡尚阳

    2015-01-01

    Sociological jurisprudence is a branch of law ,it developed from Europe .Americans learnt the thought of sociological jurisprudence due to European and American historical heritage and introduced the thought into the United States .But the development of sociological jurisprudence in the United States shows quite different style compared with that in European continent .The most distinctive fea‐ture is that American sociological jurisprudence is heavily influenced by pragmatism and experience , which is a kind legal theory based on the philosophy of pragmatism and with particular emphasis on the experience generated in accordance with the social reality in development .Holmes and Cardozo are two American sociological jurisprudence pioneers ,they are deeply influenced by the philosophy of pragmatism and highly regard experience .They promote American sociological jurisprudence maturity in their own unique way of thinking ,which results in a significant and profound impact on sociological jurisprudence .%社会学法学是法学的一个分支,其发展源于欧洲,由于欧洲和美国的历史传承性,美国人学习到了社会学法学思想,将其引入美国。但是其后社会学法学在美国的发展展现出了与欧洲大陆相比风格迥异的特点。其中最具特色的是美国社会学法学深受实用主义和经验理论的影响,它是以实用主义哲学为基础的法学理论,同时在发展中特别注重根据社会现实而产生的经验。在这一法学流派向前发展的道路上,出现了两位美国社会学法学先驱式的人物,霍姆斯和卡多佐。霍姆斯和卡多佐都深受实用主义哲学的熏陶,同时对于经验都秉持推崇的态度。他们分别以自己独特的思维方式,推动美国社会学法学走向成熟,产生了重大而深远的影响。

  15. Hedgehogs in Luxembourg? A Dworkinian reading of the CJEU's case law on principles of private law and some doubts of the fox

    NARCIS (Netherlands)

    C. Mak

    2012-01-01

    To what extent can the case law of the Court of Justice of the European Union (CJEU) in the field of European private law be understood and explained on the basis of a theoretical model of adjudication that defends the unity and objectivity of value? In light of Ronald Dworkin's theory of adjudicati

  16. Jurisprudència i bibliografia sobre la funció pública - The Civil Service: Case Law and Literature - Jurisprudencia y bibliografía sobre la función pública

    OpenAIRE

    Gemma Geis Carreras

    2012-01-01

    L’article analitza les novetats jurisprudencials i doctrinals aparegudes amb posterioritat a l’aprovació de Estatut bàsic de l'empleat públic (EBEP). En aquest sentit, s’inicia un recorregut amb les darreres sentències del Tribunal Constitucional respecte del dret fonamental a l’accés a la funció pública, passant pels requisits d’accés a la funció pública, les garanties del procediment de selecció envers les mesures de discriminació positiva, polítiques d’igualtat i d’inserció de les persones...

  17. The Liability of the Managing Body within the Insolvency Proceedings in Romania: Case-Law Study

    Directory of Open Access Journals (Sweden)

    Rodica Diana Apan

    2015-11-01

    Full Text Available The study aims at identifying the new elements that the Insolvency Code in Romania, Law 85 of 2014, brings in what concerns entailing the liability of the managing body as well as that of other persons having contributed to the debtor's state of insolvency, compared to the previous regulation provided by Law 85 of 2006. The identification of these elements is carried out by making reference to the types of deeds that, following taken legal action, can entail liability and the coverage of the debts by the members of the managing body as well as by other persons having contributed to the debtor's state of insolvency. The analysis of the deeds concentrates around two connected centers of interest: The analysis of the deeds such as they are regulated by the two regulations and the case where for certain deeds there need to be identified the elements of repeatability in the two regulations and then the relevant case-law applicable for the respective deed is analyzed. In conclusion, in this way are identified the case-law variations met by the regulations applicable to the respective deed, in the judgments grounded on Law 85 of 2006. These variations represent landmarks for the regulations comprised by the Romanian Insolvency Code – Law 85 of 2014. Following the analyzed legal precedents – a number of 30 case-law judgments issued by courts of appeal being at the highest level of jurisdiction, there are identified in concreto, the type of acts which may entail the liability of the managing body for the insolvency of the enterprise. Through the present study we aim to guide the local administrators, as well as the future foreign investors who engage in foreign direct investments (FDI in Romania with regard to the liability of the managing body in within the insolvency proceedings.

  18. Technology-facilitated Organized Abuse: An Examination of Law Enforcement Arrest Cases

    Directory of Open Access Journals (Sweden)

    Janis Wolak

    2015-07-01

    Full Text Available This paper looks at cases of organized abuse (that is, two or more offenders working in concert and having two or more victims, not solely familial reported by law enforcement respondents during the three waves of the National Juvenile Online Victimization (NJOV Study (n=29. The NJOV Study collected data from a national US sample of law enforcement agencies about technology-facilitated crimes ending in arrest at three time points: mid-2000 to mid-2001, 2005 and 2009. The paper reports on the prevalence of technology-facilitated organized abuse ending in arrest, contexts of cases and characteristics of offenders and victims. 

  19. Inexpressive Law

    OpenAIRE

    Carbonara, Emanuela; Parisi, Francesco; von Wangenheim, Georg

    2010-01-01

    According to expressive law theories, expression of values is an important function played by the law. Expressive laws affect behavior, not by threatening sanctions or promising rewards, but by changing individual preferences and tastes and, in some cases, by affecting social norms and values. New laws, however, can run against sticky social norms, failing to achieve their expressive effects. By developing a dynamic model, in this paper we show that inexpressive laws (laws whose expressive fu...

  20. SLAVERY AND CIVIL LAW IN THE ANTEBELLUM SOUTH—TWO CASE STUDIES

    Directory of Open Access Journals (Sweden)

    Harvey Gresham Hudspeth

    2006-01-01

    Full Text Available Antebellum slave law addressed fugitive slaves and criminal offenses committed by masters against slaves and by slaves against masters. Moreover, slaves were both merchandise and personal property that fell under civil monetary statutes pertaining to sales fraud and personal damage to private property. Judgment in two civil cases heard in West Tennessee during the late 185Os turn on such statutes.

  1. Empirical evidence in consumer law cases: what are 'up to' claims up to?

    NARCIS (Netherlands)

    J. Luzak

    2016-01-01

    In this contribution I argue that in certain consumer law cases providing empirical evidence is necessary and that specific standards of proof should then apply. Only through analysing evidence of actual consumer behaviour as well as of trader’s commercial practices courts and enforcement authoritie

  2. The orthodontist′s responsibility and the bioethical aspects in the current jurisprudence

    Directory of Open Access Journals (Sweden)

    Ademir Franco

    2012-01-01

    Full Text Available Context: The orthodontists usually have to manage patient′s expectations and treatment plans at the same time. Consequently, the civil responsibility and the bioethics involved on orthodontic routine are matters of relevance. Therefore, the importance of adequate conducts is addressed in this research. Aim: The present aim is to analyze the tendency of the courts judging the orthodontists′ responsibility and to observe the bioethical aspects on the current jurisprudence. Materials and Methods: The sample consisted of 108 lawsuits related to the orthodontist′s civil responsibility, dated from 2003 to 2009. The qualitative data were obtained by the Bardin′s method for detailed reading. The quantitative collection was performed by observing statistical distribution of the following variables: (1 reason of the complaint against the orthodontist, (2 type of obligation designated to the professional, (3 presence of expert′s examination, and (4 jury decision. The correlations between the jury decision and the other variables were verified by applying the Chi-square test. Results: The main reason of the complaints against the orthodontist was the personal dissatisfaction (32%. Subjective and objective obligations had pair incidence (26% and 27%, respectively. The experts′ examination was present in 63, 89%, of the cases, and the jury decision acquitted 57, 78%, of the orthodontists. The passages involving bioethical principles supported properly the qualitative approach. Conclusion: The orthodontists show deviations from the correct daily attitudes. In order to avoid further conflicts, more attention must be given to the principles of bioethics.

  3. Edouard Lambert, Théoricien de la Jurisprudence Sociologique

    Directory of Open Access Journals (Sweden)

    Stéphane CAPORAL

    2009-10-01

    Full Text Available Edward Lambert belongs to the latest generation of general law professors. In 1893, he sustained before the Law Faculty of Paris a thesis on the stipulation for others and in 1896 he was received major assistance from aggregation of Law Faculties. This is the last great contest that is the last unique competition designed to ensure equally to recruitment of all law professors and Lambert has chosen the history of law as a "special topic". As professor at the Faculty of Law at Lyon, he is responsible for "complementary course of history of French law" and he teaches the disciplines of history for many years. Only in 1921 it will open in the same faculty of Lyon Chair of Comparative Law. First legal historian and therefore eminent comparative course is also a deemed civilest, a commercial talent and labor precursor.

  4. Exploring the Role of the Internet in Juvenile Prostitution Cases Coming to the Attention of Law Enforcement

    Science.gov (United States)

    Wells, Melissa; Mitchell, Kimberly J.; Ji, Kai

    2012-01-01

    This exploratory analysis examines the role of the Internet in juvenile prostitution cases coming to the attention of law enforcement. The National Juvenile Prostitution Study (N-JPS) collected information from a national sample of law enforcement agencies about the characteristics of juvenile prostitution cases. In comparison to non-Internet…

  5. Stipulations of constitutional law governing the intensity of control of the case low of administrative courts

    International Nuclear Information System (INIS)

    In several decisions, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has derived the necessity of full judicial control from the circumstance that certain administrative decisions are based on constitutional law, and held the assessment competence of public authorities given them by the administrative courts to be unconstitutional. These rulings throw up more questions than they answer. Their importance lies in the fact that, given a certain intervention intensity, they have, from positions of substantive constitutional law, consequences for court procedures. As concerns constitutional complaints proceedings, however, the BVerfG has until now hardly clarified when such a specific constitutional position is given. The uncertainty in this point will thus necessarily have its effect upon the scope and limitation of the intensity of judicial control, and will now make case law also procedurally unpredictable. (orig.)

  6. The European Court of Justice case of Elgafaji: the interaction between EU law and international humanitarian law

    OpenAIRE

    Ispolinov A. S.

    2011-01-01

    This article focuses on the increasing influence of international court rulings on the development of new concepts within international law, in particular, the concept of subsidiary protection to persons who fall outside the scope of the 1951 Refugee Convention. The author also considers the issues related to the concept of indirect effect in EU law, as well as the interaction between the EU and international law.

  7. Contracts Contrary to Public Policy under English Law and Dutch Law : The Case of Agreements Affecting Matrimony

    NARCIS (Netherlands)

    Mansoor, Zeeshan

    2014-01-01

    Both English law and Dutch law contain general rules that result in the invalidity of contracts that conflict with morality or public policy. Working on the premise that each country has its own unique set of factors shaping public interests, this article highlights methodological aspects of identif

  8. The Exercise of Religious Freedom in Educational Institutions in the Light of ECtHR Jurisprudence

    Directory of Open Access Journals (Sweden)

    Regina Valutytė

    2012-12-01

    Full Text Available The implementation of the freedom of religion or belief in educational environment, in particular the use of religious symbols and obligatory religious education, has been, and continues to be, a matter of controversy and discussion in a number of countries. A number of cases brought before the ECtHR concerning the application of Article 9 of the Convention and Article 2 of Protocol 1 of the ECHR show that parties to the ECHR still face difficulties in guaranteeing religious freedom in the educational environment consistently with the requirements of the ECHR, the analysis of which is the core of the Article. The majority of European states seek to avoid indoctrination in state education and teaching by offering exemption mechanisms or lessons in substitute subjects, or by giving pupils the choice of whether or not to sign up to a religious studies class. However, as it is clear from the jurisprudence of the ECtHR, the exemption or choice itself does not guarantee that in practice the Member States ensure an education consistent with religious convictions in line with the requirements set forth explicitly and implicitly in Article 2 of Protocol No. 1 and Article 9 of the ECHR. Furthermore, in the majority of cases regarding the display of religious symbols, the ECtHR justified the interference as ‘necessary in a democratic society’ in pursuance of the legitimate aim of protecting the rights and freedoms of others and of public order. However, the Court’s findings in the cases concerning Islamic symbols, on the one hand, and Christian religious symbols, on the other hand, raise a discussion about ‘double standards’ applicable to the different religions.

  9. Environmental law. 2. rev. and enl. ed.; Umweltrecht

    Energy Technology Data Exchange (ETDEWEB)

    Erbguth, W. [Rostock Univ. (Germany); Schlacke, S. [Bremen Univ. (Germany)

    2008-07-01

    The text book under consideration is addressed to students of jurisprudence. It enables an entrance into the general environment law and into selected areas of the special environment law in a clear and systematic form. After an introduction of fundamental principles of the environment law, the book consists of the following topics: Basic principles of the environment law; environmental constitutional law; instruments of the environment law; legal protection in the environment law; environmental European right; environmental international law; pollution protection law; wilderness protection act and landscape conservation act, water protection right, act on recycling and waste management, soil conservation law and contaminated site law, genetic engineering law, sea environment law for the protection of the North Sea and Baltic Sea, energy right.

  10. Tackling Illegal Activities Through Tax Law – Al Capone Case Study

    OpenAIRE

    Kacaljak Matej

    2015-01-01

    This paper discusses the Al Capone case and identifies legal institutions which contributed to the conviction of Al Capone for tax evasion in the USA and discusses similarities in Slovak law. The Slovak legal environment is assessed with the aim of identifying potential room for improvement. Under an assumption of identical factual circumstances, it is tested whether Al Capone would be convicted of tax evasion in the Slovak Republic and if not, what would be the main reasons. The paper conclu...

  11. Law Company ERP Software Market Analysis of St. Petersburg and Stockholm - CASE: CSI Helsinki Oy

    OpenAIRE

    Miettinen, Marko; Hämäläinen, Mikko

    2010-01-01

    This study is a part of bachelor studies in Laurea University of Applied Sciences and was commissioned by the case company, CSI Helsinki. CSI Helsinki provides enterprise resource planning (ERP) and customer relationship management (CRM) solutions for the leading consulting businesses in Finland and focuses on leading law companies abroad. Since the first ERP systems were developed in the 1960s they have been used by companies to improve management of business functions and gain competiti...

  12. The World Court’s Ongoing Contribution to International Water Law: The Pulp Mills Case between Argentina and Uruguay

    OpenAIRE

    2011-01-01

    The judgment of the International Court of Justice in the Pulp Mills (Argentina v. Uruguay) case makes a very important contribution to international law relating to shared international water resources and to international environmental law more generally. It does much to clarify the relationship between procedural and substantive rules of international environmental law. The Court linked interstate notification of new projects to the satisfaction of the customary due diligence obligation to...

  13. Student Rights and the Special Characteristics of the School Environment in American Jurisprudence

    Science.gov (United States)

    Blokhuis, J. C.

    2015-01-01

    In American jurisprudence, there can be no presumption of constitutional rights coextensive with those of adults for children in any institutional context. This includes public schools, in part because of the legal status of minors and in part because the "special characteristics of the school environment" are predicated on a…

  14. Equal Protection Under the Law: Do Female Justices have a Different Voice?

    Directory of Open Access Journals (Sweden)

    Katherine Jorgensen

    2012-01-01

    Full Text Available As women take on a continuously larger role in the legal field, it has become tremendously important to study and understand the impact women are having on the judicial system. This work explores the role of women in the judiciary. Specifically, I examine the Supreme Court of the United States to find out whether women’s jurisprudence differs from that of their male colleagues. For this paper, I limit my examination to cases involving equal protection under the law. The theory I employ is that of Carol Gilligan, who argues that across many realms, women have a uniquely different voice than men (1982. Through a quantitative analysis of 49 cases dealing with issues of equal protection under the law, I show that Gilligan’s theory helps us understand how cases are decided in the United States Supreme Court. Additionally, I show how the “Different Voice” model improves upon existing models of judicial decision making by Lee Epstein, Jeffrey Segal, and Harold Spaeth. This paper expands current gender and politics literature, which had previously used Gilligan’s insights to examine U.S. state legislatures, by analyzing decision making in the Supreme Court. This paper thus illustrates that women, due to their unique life experiences, have a different understanding of the law in regards to equality and equal protection under the law.

  15. The "Discrete Trials" of Applied Behavior Analysis for Children with Autism: Outcome-Related Factors in the Case Law

    Science.gov (United States)

    Choutka, Claire Maher; Doloughty, Patricia T.; Zirkel, Perry A.

    2004-01-01

    This study provides an analysis of case law concerning applied behavior analysis (ABA) for students with autism to determine outcome-related factors. The authors classified the 68 pertinent hearing/review officer and court decisions published in EHLR ("Education for Handicapped Law Report") and IDELR ("Individuals with Disabilities Education Law…

  16. Opportunities in EU case law for achieving Dutch sustainable energy targets: it's up to the Netherlands to seize them

    NARCIS (Netherlands)

    S.A.C.M. Lavrijssen

    2013-01-01

    This article draws on recent case law of the European Court of Justice to examine the opportunities available in European Union law to promote the generating of electricity from renewable sources within the Dutch system for managing congestion in the electricity grid (CMS) and for allocating the cos

  17. Probability Arguments in Criminal Law - Illustrated by the Case of Lucia de Berk

    Directory of Open Access Journals (Sweden)

    Herman Philipse

    2015-01-01

    Full Text Available Which logic of probability should be applied with regard to factual hypotheses in criminal cases? In this article, I discuss two possible logical reconstructions of the so-called Coincidence Argument, which played a crucial role in the conviction of Lucia de Berk by the Court of Appeal of The Hague (Gerechtshof ’s-Gravenhage in 2004. If the argument is construed as an instance of the Law of Likelihood, nothing follows with regard to the probability that Lucia was a serial killer. If, however, the Argument from Coincidence may be interpreted charitably as an instance of Bayesian updating, the Court of The Hague did not fathom the diversity of the data needed in order to make it sound. Clearly, the Court had an insufficient grasp of the logic involved in the Coincidence Argument. Since this example is not atypical, I recommend law faculties to include probability logic (inter alia in their courses on legal reasoning.

  18. Power-law Distributions in Information Science - Making the Case for Logarithmic Binning

    CERN Document Server

    Milojević, Staša

    2010-01-01

    We suggest partial logarithmic binning as the method of choice for uncovering the nature of many distributions encountered in information science (IS). Logarithmic binning retrieves information and trends "not visible" in noisy power-law tails. We also argue that obtaining the exponent from logarithmically binned data using a simple least square method is in some cases warranted in addition to methods such as the maximum likelihood. We also show why often used cumulative distributions can make it difficult to distinguish noise from genuine features, and make it difficult to obtain an accurate power-law exponent of the underlying distribution. The treatment is non-technical, aimed at IS researchers with little or no background in mathematics.

  19. Law of requisite variety: a case of IT and business alignment

    Directory of Open Access Journals (Sweden)

    Jaroslav Kalina

    2011-07-01

    Full Text Available This paper provides an explanation of the increasing complexity of corporate IT management as a special case of application of the law of requisite variety. Frequently cited drawback of established frameworks of IT best practices like COBIT and ITIL is their complexity and related difficulty in their implementation. Through the perspective of the law of requisite variety, drawn from the field of cybernetics, we can take a more elaborated approach to this phenomenon. First, through mapping the domain of corporate IT management to the concepts from cybernetics, we ground this area in set of well defined terms. The aim of this paper is to promote the perspective, that problems with increasing complexity in IT management are directly traceable to the encompassing business environment.

  20. The environmental protection in the jurisprudence of the Inter-American Court of Human Rights

    Directory of Open Access Journals (Sweden)

    Valerio de Oliveira Mazzuoli

    2015-09-01

    Full Text Available This article examines the interconnections between environmental issues and the protection of human rights, in a process that began in the United Nations Conference on the Human Environment (Stockholm, 1972 and has been developed by the greening of the regional human rights systems. In the Inter-American system the article 11 of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights of 1988 — the Protocol of San Salvador — guarantees the right to a healthy environment. However the American Convention (on its arts. 3-25, 44-51 and 61-69 and its Additional Protocol (on its arts. 8, 13 and 19.6 only allow the submission of individual petitions to the Inter-American Commission and the possible acting of the Inter-American Court, in complaints containing alleged violations of civil and political rights, trade union rights and the right to education. Despite the lack of devices that are capable to ensure an effective protection to the right to a healthy environment, by itself, the Inter-American Court has demonstrated the greening of the human rights, which means, in other words, that it is quite possible to protect environmental issues by the demonstration of its interconnections with civil and political rights that are directly protected by the inter-American system. Therefore, it is necessary to understand the contributions of the jurisprudence of the Inter-American Court in the strengthening of the civil and political rights in cases related to environmental issues.

  1. The Meaning of Law Through State in Legal Framework of “Rechtstaat”

    Directory of Open Access Journals (Sweden)

    Jeffry Alexander Ch. Likadja

    2015-04-01

    Full Text Available This research reviews the meaning of law through state in legal framework of “Rechtstaat” and how the implementation and implications for the liberty (peoples in Indonesia. The type of study was a normative research (doctrinal research by using existing conceptual approach. The outcomes of the research indicate that the Rule of Law is necessary to make the concept rechtstaat becomes more dynamic and able to deal with social changes in society and make the law more autonomous than other authorities such as political intervention. Furthermore, Implementation of freedom in the context of state law is interpreted narrowly and only considers justice can be done if the procedural law can be obeyed by all citizens. The main purpose of the application of the Rule of Law is the limitation of authority and power reduction obligations of citizens, so that it will produce a doctrine of jurisprudence based on the rights (right centered jurisprudence.

  2. The Great War and Its Significance for Law, Legal Thinking and Jurisprudence

    NARCIS (Netherlands)

    Boom, van W.H.

    2014-01-01

    This year marks the centenary of the outbreak of the Great War, the First World War. The remembrance events, museum exhibitions, TV-programs and numerous publications rightly draw attention to the Great War. Obviously, in the past century much scholarly work has been dedicated to the Great War, its

  3. Expansion of citizenship rights based on religious teachings Jurisprudence and Law

    Directory of Open Access Journals (Sweden)

    Alireza ShekarBeigi

    2014-02-01

    Full Text Available Social life, social relationships between people in society demands that must be surrendered under regularity. However, if there is no discipline in society, coercion and extortion and deception, will govern relations among people, and this fighting and turmoil, to be brought along. Individual citizen, in connection with a government, civil and political rights on the one hand, and on the other hand, the government is responsible for that task. Citizenship, a status is active. Excellent basis for human affairs is considered. Citizen initiatives demand that all people be treated equally, the roots of the social tensions that threaten social order, to dry. The concept of citizenship, establishes a balance between rights and responsibilities. Monitoring and Control (enjoining and forbidding the evil, one of the tasks is inevitable, as a citizen, and plays an important role in human resource development, community plays, and citizens in its decision aids improve, It is essential that the citizens of the community, become more familiar with this monumental task, and continually upstream and child, monitoring and control, and specifying their advantages and disadvantages, in the course of human perfection, and realization of important objectives, such as social justice, the basic steps to take. It is also essential that the citizens of the Muslim community, enjoining and forbidding the evil (monitoring and control, from the perspective of management are favored. In the public administration and enjoining good and forbid the evil, that good citizenship is a definite component of the index, the results will follow, that has been mentioned

  4. The development of health law as a way to change traditional attitudes in national legal systems. The influence of international human rights law: what is left for the national legislator?

    Science.gov (United States)

    Birmontiene, Toma

    2010-03-01

    The development of health law as a sovereign subject of law could be seen as a correlative result of the development of international human rights law. From the perspectives of human rights law, health law gives us a unique possibility to change the traditional point of reference - from the regulation of medical procedures, to the protection of human rights as the main objective of law. At the end of the twentieth and the beginning of this century, human rights law and the most influential international instrument--the European Convention on Human Rights (and the jurisprudence of the ECHR) has influenced health care so much that it has became difficult to draw a line between these subjects. Health law sometimes directly influences and even aspires to change the content of Convention rights that are considered to be traditional. However, certain problems of law linked to health law are decided without influencing the essence of rights protected by the Convention, but just by construing the particularities of application of a certain right. In some cases by further developing the requirements of protection of individual rights that are also regulated by the health law, the ECHR even "codifies" some fields of health law (e.g., the rights of persons with mental disorders). The recognition of worthiness and diversity of human rights and the development of their content raise new objectives for national legislators when they regulate the national legal system. Here the national legislator is often put into a quandary whether to implement the standards of human rights that are recognized by the international community, or to refuse to do so, taking account of the interests of a certain group of the electorate.

  5. Examination of the Provisions Governing the Interceptions of Conversations and Communications according to the European Court of Human Rights Jurisprudence

    Directory of Open Access Journals (Sweden)

    Alexandru Boroi

    2013-03-01

    Full Text Available The objective of the present research consists of analyzing the requirements imposed by the jurisprudence of the European Court of Human Rights in order to establish the presence / absence of a match between the standards and regulations of the Romanian legislation in the field of audio or video interceptions and recordings. This paper joins the scientific efforts made by other authors in order to identify the existing problems in the internal law from the perspective of the Convention. The concrete results of the research focus on presenting the principles required by the European Court of Human Rights on the protection of privacy. The paper also examines the internal rules that violate the European standards in the field. The undertaken research may be useful to practitioners in the field, that will be guided to the correct application of community and national provisions, and to theorists and Romanian legislator. The research is a critical analysis of the national rules that do not meet the European Court of Human Rights standards and it reports the negative effects that may occur, as a consequence of these provisions.

  6. THE APLICATION OF ISLAMIC LAW IN INDONESIA: The Case Study in Aceh

    OpenAIRE

    Kamaruzzaman Bustamam-Ahmad

    2007-01-01

    This article provides an historical account of the implementation of Islamic law in Aceh and how the issue of Islamic law has been debated. The study will give more emphasis on the dynamics of the implementation of Islamic law, its historical development, typologies of Islamic law, leaders’ opinions regarding this issue, and the governments’ responses. This study argues that Islamic law in Aceh has been misinterpreted merely as h{udu>d law. In addition, it argues that the provincial govern...

  7. “The French Constitutional Council as the Rottweiler of the Republican Ideal in the Language Field: Does Jurisprudence Really Reflect Reality?”

    Directory of Open Access Journals (Sweden)

    Stefan Graziadei

    2012-11-01

    Full Text Available France is known for being a champion of individual rights as well as for its overt hostility to any form of group rights. Linguistic pluralism in the public sphere is rejected for fear of babelization and Balkanization of the country. Over recent decades the Conseil Constitutionnel (CC has, together with the Conseil d’État, remained arguably the strongest defender of this Jacobin ideal in France.In this article, I will discuss the role of France’s restrictive language policy through the prism of the CC’s jurisprudence. Overall, I will argue that the CC made reference to the (Jacobin state-nation concept, a concept that is discussed in the first part of the paper, in order to fight the revival of regional languages in France over recent decades. The clause making French the official language in 1992 was functional to this policy. The intriguing aspect is that in France the CC managed to standardise France’s policy vis-à-vis regional and minority languages through its jurisprudence; an issue discussed in the second part of the paper. But in those regions with a stronger tradition of identity, particularly in the French overseas territories, the third part of the paper argues, normative reality has increasingly become under pressure. Therefore, a discrepancy between the ‘law in courts’ and the compliance with these decisions (‘law in action’ has been emerging over recent years. Amid some signs of opening of France to minorities, this contradiction delineates a trend that might well continue in future.

  8. 法理学视野中的社会排斥问题探析%The Social Exclusion in the Jurisprudence Perspective

    Institute of Scientific and Technical Information of China (English)

    袁丁

    2012-01-01

    社会排斥为一在社会学与公共政策领域得到越来越多关注之问题。目前,相关研究大部分集中于社会学、以及经济学、政治学等领域,来自法学领域的回应却十分贫乏。虽然当代社会排斥的政策实践已日渐发达,但如缺乏规范伦理和法理学上之审慎思考,政策实践则仅仅是某种权宜之计或实用性妥协,而无法被当作其他辩护主张所援引的先例或标准,而法理学反思则可以使社会排斥真正成为一种基本正义的问题,甚至可以进而通过探讨反社会排斥中的人权问题,最终使得实际妥协性政策措施上升为关于新法律原则的承诺和法律加以保护的权利。本文主要讨论社会排斥与两种自由观念的关系、社会排斥与两种常见国家观念之关系,以及一种反对社会排斥的社会融合权是否必要和可能这三个问题,力求从法理学层面对社会排斥问题做出初步的分析和回应。%Social exclusion are drawing more and more attention in the research of sociology and public policy.Currently,most of the relevant studies focused on sociology,economics,political science and other fields,but there is very poor response from the field of jurisprudence.Although the policy and practice about social exclusion have become more developed,but as the lack of careful consideration on normative ethics and jurisprudence,policy practice is just some kind of expediency or practicality compromise,and cannot be treated as precedent or standard cited by other defense advocates.Jurisprudence may treat social exclusion as one of the basic problems of justice.By exploring human rights issues in social exclusion,jurisprudence ultimately makes the actual compromise policy measures become the principles of the new law and the legal protection of the rights.This paper focuses on the relationship of social exclusion with both the concept of freedom,with the two common state concept,as well as whether the

  9. The Sporting Exemption in European Case Law (The «Olympique Lyonnais» case.

    Directory of Open Access Journals (Sweden)

    MARIOS PAPALOUKAS

    2010-01-01

    Full Text Available In the early nineties, when the “Bosman” case arose, sports authorities were faced with a great challenge. The widely accepted autonomy and self-regulation of the sports sector was at stake. If sports were to be treated as just an-other economic activity without exceptions and if its specific characteristics were not recognised, the whole athletic establishment would be endangered. Since then there were many efforts both from member states and from sports entities in order to establish the so called “sporting exemption” on a political level as well as before the European Court of Justice (henceforth ECJ. The “Olympique Lyonnais” case presents an opportunity for the ECJ to rule in favour of the existence of the exemption. Advocate General E. Sharpston delivered her Opinion on the 16th of July 2009 supporting the exemption. The present contains a summary of this opinion as well as remarks on the effect that this case is going to have on the athletic establishment if the ECJ adopts the Advocate General’s views on the matter.

  10. Legal protection of private persons in the case of acts of foreign states contrary to international law - with special reference to international environmental law

    International Nuclear Information System (INIS)

    The author describes the basis for claims following to international law for a case like Chernobyl. He examines possibilities of enforcement of private claims, regarding legal protection in courts of the state where the incident occurred, and of the state where the damage was suffered, of the International Court of Justice, and by way of diplomatic protection. Individual guarantees of procedure still can be improved at present. (CW)

  11. Jurisprudence basis of land contract and management rights transfer%论土地承包经营权流转的法理学基础

    Institute of Scientific and Technical Information of China (English)

    张建

    2011-01-01

    In the development of Western legal thought history,the natural law,utilitarianism law,analysis of legal positivism and social law and other schools were created.The theories contain instructive ideas for the rights of land contractual management and transfer system,such as Locke's liberal theory,Austin's positive law theory and Holmes' realism theory;and therefore,it is necessary to discuss theoretical basis of the land contract and the transfer of management rights from the perspective of jurisprudence.%在西方法律思想史的发展过程中,主要产生了自然法学、功利主义法学、分析实证主义法学以及社会法学等流派。这些理论中蕴含着对构建土地承包经营权流转制度具有指导意义的思想,诸如洛克的自由理论、奥斯汀的实在法理论和霍姆斯等的现实主义理论等,因此,从法理学的视角探讨土地承包经营权流转的理论基础十分必要。

  12. Introducing competition principles into health care through EU law and policy: a case study of the Netherlands.

    Science.gov (United States)

    van de Gronden, Johan; Szyszczak, Erika

    2014-01-01

    A national health care service is one of the central pillars of the welfare state in Europe. Recent moves to modernise health care, alongside introducing efficiencies through competition have resulted in experimentation and a re-organisation of national health care systems. The experimental nature of the reforms has brought health care into the focus, but uncertain territory, of EU economic law, especially competition law. Added to these pressures, the new EU fiscal measures oblige Member States to avoid excessive budgets and macro-economic imbalances. One constraint on an EU-based system of competition in health care is the effect of decentralisation, resulting in variations at the national level. Thus a case study is taken of the experience in The Netherlands. From this case study, we argue that a new form of Euro-national competition law is emerging for the health care sector with national authorities taking the lead in shaping the contours of this law. PMID:24841529

  13. 范式转换中的法理学与法哲学之关系%A Discussion of the Relationship between Jurisprudence and Legal Philosophy in Paradigm Transformation

    Institute of Scientific and Technical Information of China (English)

    顾瑞

    2013-01-01

    There are different opinions in academia on relations between jurisprudence and legal philosophy . The deepgoing study has its significance to distinguish between law and philosophy discipline , then to deeply understand law and practice ,which has the meaning of ontology ,epistemology and theory of value . The purpose of this paper is to analyse the turning in philosophy history and the change of paradigm that has determining influence on study of law by using the concept of paradigm ,analysing meaning of some basic legal terms and judging the relations between jurisprudence and legal philosophy based on philosophi-cal paradigm .As a result ,the paper gives its conclusion .As the basic theory of law ,jurisprudence has the general and characteristics .Jurisprudence is the direct studying of law and legal philosophy is the reflective thinking of jurisprudence .Legal philosophy reflects on the paradigm which is the thought pre-requisite of law ,and promotes the deepening of law understanding from an opposite direction .%  法理学与法哲学之关系的深入讨论,不仅仅是涉及法学与哲学的学科划分与法学体系构建的专业分工的实际问题,更加有助于对法的深刻把握与自觉实践,具有本体论、认识论与价值论的理论意义。我们应从法学、哲学等相关基本术语的词源学考察与现代含义实证分析入手,概观法学学科的历史发展,运用范式概念作为分析工具,分析哲学史上几次重大的哲学转向、范式转换对法学历史发展的决定性影响,提出基于哲学范式概念的关于法理学与法哲学之关系的判断。作为法学基础理论的法理学,具有一般性、抽象性的特点,属于对法直接性的认识活动的范畴。法哲学则通过对法学的思想前提,即范式的反思,从反面促进对法的认识的深化,法哲学是法学的哲学反思。

  14. 29 CFR 102.35 - Duties and powers of administrative law judges; stipulations of cases to administrative law...

    Science.gov (United States)

    2010-07-01

    ... justice would be served thereby; (6) To regulate the course of the hearing and, if appropriate or... hearing to state their respective positions concerning any issue in the case or theory in support...

  15. The Knowledge Contribution of "Jurisprudence" by Professor Bernd Ruthers%知识贡献:魏德士之《法理学》

    Institute of Scientific and Technical Information of China (English)

    韩晗

    2009-01-01

    As the current trend of convergence of the law, the improvement and development of law needs absorbing other system is an undisputed fact. It is necessary for China at the rule of law to refer the legal sys-tem and the legal theory of other countries. German Law for its mature legal theory and doctrine, have had an important impact on the development of the world law and legal system. China is also far-reaching influenced. The monograph "jurisprudence" by contemporary German famous jurist Professor Bernd Ruthers, with discipline style,a new perspective and rich informative, can help China's student who study the law to form the thought of lawyer. While the theoretical research on the China Law, as well as legal education can also get a reference from the monograph.%随着当前法律的趋同化趋势进一步加强,法律的进步和发展需要博采众长已是不争的事实,因此,中国法治对域外法律制度、法学理论的借鉴很有必要.具有丰富成熟的法律理论与教义的德国法学,对世界法制发展产生过重要影响.对我国法学和法制建设也影响深远.德国当代著名法学家魏德士教授,其专著体例严谨规范,角度新颖,内容翔实,能帮助中国的法律研习者形成法律人思维,对中国法学理论研究以及法学教育亦有很好的借鉴作用意义.

  16. Law, Politics and Markets of Corporate Governance: Institutional Investors' Influence

    OpenAIRE

    Carniglia, Stephen Davis

    2013-01-01

    AbstractLaw, Politics and Markets of Corporate Governance:Institutional Investors' InfluencebyStephen Davis CarnigliaDoctor of Philosophy in Jurisprudence and Social PolicyUniversity of California, BerkeleyProfessor Robert A. Kagan, Chair This dissertation research project examines the role of institutional investors in influencing the corporate governance rules applicable to U.S. public companies, through an interview study of institutional investors and their expert corporate governance adv...

  17. Presumption of lawful acquirement of property and confiscation of unlawfully acquired property in the case-law of the Romanian Constitutional Court. The reference constitutional framework for regulating of the extended confiscation

    Directory of Open Access Journals (Sweden)

    Marieta SAFTA

    2012-06-01

    Full Text Available This study examines - from a dual perspective - historical and teleological, the constitutional provisions that enshrine the presumption of lawful acquirement of assets, including the development and interpretation thereof in the case-law of the Constitutional Court, in order to create a framework for analysis of Law no. 63/2012 amending and supplementing the Criminal Code and Law no. 286/2009 on the Criminal Code, a law that establishes the measure of extended confiscation, expression of international regulatory concerns in this area.

  18. Gender Jihad: Muslim Women, Islamic Jurisprudence, and Women's Rights

    Directory of Open Access Journals (Sweden)

    Melanie P. Mejia

    2007-06-01

    Full Text Available Muslim women's rights have been a topic of discussion and debate over the past few decades, and with a good reason. Islamic Law (Shariah is considered by many as patriarchal and particularly oppressive to women, and yet there are also others-Muslim women-who have rigorously defended their religion by claiming that Islam is the guarantor par excellence of women's rights. A big question begs to be answered: is Islam particularly oppressive to women?The Qur'an has addressed women's issues fourteen hundred years ago by creating certain reforms to improve the status of women; however, these reforms do not seem to be practiced in Muslim societies today.1 How is this so? I contend that Islam, as revealed to Muhammad, is not oppressive to women; rather, its interpretation, in so far as it is enacted in the family laws and everyday living, is patriarchal and hence needs to be examined.2 The goal of this work is to discuss what the Qur'an says about certain problems which gravely affect Muslim women, specifically: 1. gender equality 2. polygamy 3. divorce and the concept of nushuz

  19. Mens rea - Mistake of law & mistake of fact in German criminal law: A survey for international criminal tribunals

    OpenAIRE

    Badar, ME

    2005-01-01

    More than a decade has passed since the establishment of the two ad hoc Tribunals, however, the jurisprudence of both Tribunals evidence the inconsistency regarding the requisite mens rea standards for serious violations of international humanitarian law. Hence, a survey of the attitude taken towards the definition of the major facets of mens rea by the world major legal systems is of great significance with regard to the establishment of a unified concept for mens rea in international crimi...

  20. Roe v. Wade and the lesson of the pre-Roe case law.

    Science.gov (United States)

    Morgan, R G

    1979-08-01

    The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process. PMID:10245969

  1. "War" in the Jurisprudence of the Inter American Court of Human Rights

    Directory of Open Access Journals (Sweden)

    Laurence Burgorgue - Larsen

    2010-12-01

    Full Text Available How have Inter-American Human Rights bodies dealt with the notion of “war”, which has been transformed over time into the notion of internal and international “armed conflicts”? This question provides the analytical foundation of the first part of this study, which sets out the various types of conflicts that have occurred in the American continent. These situations (armed conflicts, internal strife, State terrorism have produced a wide range of legal categorizations, utilized by both the Commission and Inter-American Court of Human Rights in their case-law. This conceptual delimitation carried out by these two bodies is all the more important as it affects the law that applies to armed conflicts. Indeed, by analysing this question, the never-ending debate on the relationship between International Human Rights Law and International Humanitarian Law reappears. The second part of this study therefore focuses on the issue of discovering whether and in which way jus in bello has found its place into the Inter-American Human Rights bodies’ case-law. As the active political life of Latin American societies has shown, the study of the different applicable legal regimes also requires looking into “state of emergency” Law, an issue which has been shaped by the Inter-American Court and Commission’s work.

  2. THE CRIMINAL LIABILITY OF CORPORATIONS – OVERVIEW ON RECENT CASE LAW OF THE ROMANIAN COURTS

    Directory of Open Access Journals (Sweden)

    ANDRA ROXANA ILIE

    2012-05-01

    Full Text Available Although the criminal liability of corporations is now consecrated in Romanian for more than five years, there is however some reticence in engaging the liability of such person. Nonetheless, in the past years, it can be noticed an emergence of the files where the problem of the criminal liability of corporations is raised. The purpose of this paper is to present the main issues from the Romanian case law in this field. Several topics are to be mainly discussed, such as the enforcement of criminal sanctions such as the winding-up or the diffusion of the decision, the application of precautionary measures and interim measures against corporations, the possibility to call a corporation in the criminal trial both as accused and as third party called liable for other person’s acts etc. During this analysis, it can be noticed that the most common crimes perpetrated by corporations are related to employment issues, copyright, corruption, illegal drug trafficking etc. Therefore, the objectives pursued by the present study are to provide an approach on the most recent court decisions where criminal charges against corporations were carried out and to see how the relevant legal provisions were applied in these cases.

  3. Limits on Exoneration from Responsibility in International Law: Amnesties, Selection and Priorization of Cases in National Jurisdiction

    Directory of Open Access Journals (Sweden)

    Sebastián Machado Ramírez

    2014-04-01

    Full Text Available Much has been said about the legal tools that a State has to confront a process of transitional justice. Traditionally, international literature has discussed the content of the “truth, justice and reparation” standards. Notwithstanding, little attention has been paid to the legal sources that may limit or permit the partial preclusion of wrongfulness in transitional justice mechanisms. This preclusion of wrongfulness may be part of a prosecutorial policy of prioritization and selection of cases, which may be in turn linked to partial amnesties or pardons. The objective of this article is to study three regulatory frameworks in international law: 1 international human rights law; 2 international humanitarian law; and 3 international criminal law. A close look reveals that no international instrument requires that a State investigates every case related to the armed conflict. In general terms, international law prohibits the adoption of blanket amnesties, but allows the State to select and prioritize its cases, without punishing the partial preclusion of wrongfulness of some of the perpetrators.

  4. Reflection on Law Case of Xu Ting%许霆案之法学反思

    Institute of Scientific and Technical Information of China (English)

    王志亮

    2012-01-01

    According to the rules of current "Penal Pode", Xu Ting case, compared with curt ruling "thieves offencs", is a typical criminal case that has been resulted form the civil case and is more suitable when it is regarded as embezzlement crime. The apocalypse getting from "Tu Ting case" is that penal code can not wrong an innocent people as well as indulge a crime personp; And, penal should go with in response to the offense, such as:offense is light when penal is light, offense is heavy when the penal weigh. These should be under the modern social penal code principle by the common citizen,lawgiver andjudicatory who are going to pursuing law candor.%“许霆案”是一个由民事行为转化为犯罪行为的典型案件,根据我国现行《刑法》的规定,比之于法院判决“盗窃罪”的定性,其定性为“侵占罪”更为合适。“许霆案”的启示是,刑法既不能冤枉一个无辜者,也不能放纵一个犯罪人;而且,应罪刑相适,罪轻则刑轻,罪重则刑重。这是现代社会刑法理念下普通公民、立法者、司法者应该追求的法律公正。

  5. Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia

    OpenAIRE

    Tamir Moustafa

    2013-01-01

    Drawing on original survey research, this study examines how lay Muslims in Malaysia understand foundational concepts in Islamic law. The survey finds a substantial disjuncture between popular legal consciousness and core epistemological commitments in Islamic legal theory. In its classic form, Islamic legal theory was marked by its commitment to pluralism and the centrality of human agency in Islamic jurisprudence. Yet in contemporary Malaysia, lay Muslims tend to understand Islamic law as b...

  6. Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia (SWP 12)

    OpenAIRE

    Moustafa, Tamir

    2011-01-01

    Drawing on original survey research, this study examines how lay Muslims in Malaysia understand foundational concepts in Islamic law. The survey finds a substantial disjuncture between popular legal consciousness and core epistemological commitments in Islamic legal theory. In its classic form, Islamic legal theory was marked by its commitment to pluralism and the centrality of human agency in Islamic jurisprudence. Yet in contemporary Malaysia, lay Muslims tend to understand Islamic law as b...

  7. A critical perspective on the reform of Dutch social security law. The case of the life course arrangement

    NARCIS (Netherlands)

    Eleveld, Anja

    2012-01-01

    This study seeks an answer to the question how the establishment of the idea of individual savings schemes in Dutch collective social security law can be critically explained. The introduction of the Life Course Arrangement serves as a paradigmatic case for this study. Based on a (juridical) discour

  8. The Proliferation of Case Method Teaching in American Law Schools: Mr. Langdell's Emblematic "Abomination," 1890-1915

    Science.gov (United States)

    Kimball, Bruce A.

    2006-01-01

    Case method teaching was first introduced into American higher education in 1870 by Christopher C. Langdell (1826-1906) of Harvard Law School (HLS), where it became closely associated with a complex of academic meritocratic reforms. "Mr. Langdell's method" became, in fact, emblematic, "creating and embodying cultural values and messages" of the…

  9. EU External Relations Law: Text, Cases and Materials, Bart Van Vooren and Ramses A. Wessel, Cambridge University Press, UK, 2014

    DEFF Research Database (Denmark)

    Butler, Graham

    2014-01-01

    by the Treaties, and it is suitably placed to become the core text for teaching this expanding EU policy field. In their book, EU External Relations Law: Text, Cases and Materials, Van Vooren and Wessel seek to fill the gap in up-to-date literature from a legal standpoint in the field of external relations...

  10. BUT IS IT SPEECH? MAKING CRITICAL SENSE OF THE DOMINANT CONSTITUTIONAL DISCOURSE ON PORNOGRAPHY, MORALITY AND HARM UNDER THE PERVASIVE INFLUENCE OF UNITED STATES FIRST AMENDMENT JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Letetia van der Poll

    2012-08-01

    Full Text Available Under the pervasive influence of United States First Amendment jurisprudence, adult gender-specific sexually explicit (or “pornographic” material is conceptualized, and thus protected in the “marketplace of ideas”, as a particular mode of expression; to be viewed as part of the fabric of an open, free and democratic society. The values which free expression are seen to promote centre upon the advancement of political debate and promotion of personal self-fulfilment and autonomy. Attempts to conceptualise sexually explicit material within a gender-specific human rights framework present distinct challenges which, in a patriarchal legal and political design, appear to be near insurmountable. These challenges seem to be related to the enduring impact of the common law conception of obscenity (with its strong moralistic overtones on the jurisprudence of the United States Supreme Court, coupled with a subjective libertarian-inspired test, and the Supreme Court’s general reluctance (also echoed by the South African Constitutional Court to consider a gender-specific conception of harm emanating from feminist arguments premised upon women’s constitutional interests in human dignity, equality and bodily integrity. The social revolution of the 1960s, coupled with the women’s liberation movement, called for a distinct departure from the traditional conception of sexually explicit material as a mode of constitutionally defendable free speech and expression, a conception which unavoidably calls for a moralistic approach, separating acceptable forms of expression from those not deemed worthy of (constitutional protection (termed “obscenity”, specifically created to satisfy the “prurient interest”. The Supreme Court’s obscenity jurisprudence is characterised by two key features. First, the court subscribes to an abstract concept of free speech, which proceeds from the assumption that all speech is of equal value, and thereby surmises

  11. THE LAWFUL EXECUTION OF EMPLOYER RIGHTS IS AN IMPORTANT SUBSYSTEM OF CORPORATE GOVERNANCE (A LABOUR CASE STUDY)

    OpenAIRE

    Zoltan Imre Nagy; Viktor Valo

    2013-01-01

    In the world of work, the political transition created a difficult situation in Hungary which has become even less favourable in the 2010s. Employees are exposed to numerous infringements. The case study presented at previous MEB conferences and continued herein illustrates the vulnerability of employees. The case study provides an excellent opportunity for the presentation of the special Hungarian labour law (the conclusion of an employment relationship, payment of wages, performance of work...

  12. Public Deliberation and Decision-making Processes: the Case of Tuscan Regional Law and Citizen Partecipation

    OpenAIRE

    Floridia Antonio

    2008-01-01

    Tuscany Region has recently approved a regional law aiming to promote new forms and channels of citizen participation in public decision-making processes. The article analyses the origins and the political objectives of this law and the wide participative process by which the law itself was devised. The scenario in which this project was conceived is that of a region, such as Tuscany, still characterized by a high level of "social capital", but with an increasing risk of erosion to its tradit...

  13. The normative power of the international commission of radiation protection on the approval of the international and communal jurisprudence; Le pouvoir normatif de la commission internationale de protection radiologique a l'epreuve de la jurisprudence internationale et communautaire

    Energy Technology Data Exchange (ETDEWEB)

    Lajoinie, O

    2006-01-15

    From an original synthesis of the jurisprudence given by the regular control agency of the international work organization concerning the Convention OIT 115 relative to the protection of workers against the ionizing radiations, as well as an alternative analysis of a communal jurisprudence (CJCE, C-376/90, 25 November 1992: Commission of the European Communities against the Belgium kingdom), this work aims to bring a new way to see the power that exerts a non governmental organization with a scientific character: the International Commission for Radiologic Protection (ICRP) when it gives its 'recommendations'. (O.M.)

  14. Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan

    Directory of Open Access Journals (Sweden)

    Mohd Hafiz Jamaludin

    2014-06-01

    Full Text Available Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM. The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.

  15. Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the ECtHR’s Case Law

    Directory of Open Access Journals (Sweden)

    Lorena Bachmaier Winter

    2013-09-01

    Full Text Available A single European area of freedom, security and justice requires new models of judicial cooperation in criminal matters to be put in place in order to efficiently combat transnational organized crime. However, this should not be done while disregarding the protection of the individual rights of the suspect and the accused: a transnational criminal procedure should not entail a lowering of the procedural safeguards identified by the European Court of Human Rights. The tension between the efficiency in the cooperation and the need to protect the fundamental rights of the defendant is particularly visible in matters of the transnational gathering of evidence, its transfer and its admissibility as evidence against the accused. This paper intends to identify general principles and rules that should be applied in European transnational criminal proceedings with regard to witness evidence. Departing from the ECHR’s case law, this paper will try to identify the principles regarding the hearing of witnesses who reside in another Member State, the admissibility of pre-trial statements as evidence and the need to foster the use of the live video link for witness questioning.

  16. Fundamental Rights and Humaneness in European Private Law : The Case of Health Care

    NARCIS (Netherlands)

    Colombi Ciacchi, Aurelia; McCann, Adam; Ferreira, Nuno; Kostakopoulou, Theodora

    2015-01-01

    An institution has a ‘human face’ if it takes the interests core to ‘human flourishing’ seriously. The question arises whether and how these interests find proper consideration in EU private law. The interests core to ‘human flourishing’ relevant for substantive private law include the following nin

  17. Legal protection in psychiatry. The jurisprudence of the organs of the European convention of human rights.

    Science.gov (United States)

    Dougin, A

    1998-01-01

    The European Convention of Human Rights recognises a certain number of rights and freedoms for persons within States' jurisdiction. For those confined in psychiatric hospitals, this legal protection concerns first of all the lawfulness of deprivation of liberty, which must conform to the conditions laid down by the Convention as interpreted by the case-law of the Convention organs (the Commission and Court of Human Rights). The Convention also guarantees to person deprived of their liberty further rights: the right to information, the right to appear before a court, the right to compensation and also the right to the respect of privacy and correspondence.

  18. Constitutionalization of international investment law: Indirect expropriation cases, fair and equitable treatment

    Directory of Open Access Journals (Sweden)

    César Higa

    2013-12-01

    Full Text Available The purpose of this paper is to explore the impact of international investment law rules in the Economic Constitutional Law, especially those included in investment chapters of Peruvian’s Free Trade Treaties. In particular, it is expected to demonstrate the following (i International Investment Law is part of Peruvian Legal System; (ii provisions of these laws are mandatory and should be applied domestically; and (iii interpretation and implementation of this legal right should be executed consistently with domestic legal system and Peruvian international obligations. This agreed Interpretation between Investment Law and Economic Constitution will have a positive effect in rationalization of public entities actions avoiding abuses and maltreatment to investors, in order to improve investment climate as a key element forachieving country’s sustainable development.

  19. Simulation of Case Depth of Cementation Steels According to Fick's Laws%Simulation of Case Depth of Cementation Steels According to Fick's Laws

    Institute of Scientific and Technical Information of China (English)

    S R Elmi Hosseini

    2012-01-01

    The carburizing process is the enrichment of the depth of low carbon steels with carbon. It leads to samples with a combination of high surface hardness and high core toughness and to an impact strength that is required for many engineering parts. The material studied is a low carbon steel. The carbon content is little in this type of steel (wc = 0.2 ~). The calculation of case depth is very important for cementation steels that are hardened in the carburi- zing process. The effective case depth is defined as the perpendicular distance from the surface to a place at which the hardness is HV 550. Nowadays, a great number of studies have been carried out on the simulation of effective case depth, but no studies have been conducted to determine the numerical relation between the total case depth on one hand and the carburizing time and the effective case depth on the other hand. The steel specimens were subjected to graphite powder. Then, they were heat treated at 925 ~C for about 3, 5, 8 and 12 h, respectively. Then, these parts were quenched in oil. To determine the effective case depth, the micr0hardness test was performed on the cross-section of specimens. Plotting the case depth vs carburizing time, the required conditions for obtaining the specified case depth were determined. Also, the comparison between the case depths in numerical solution and the actual position in pack carburizing was performed.

  20. The law of EU external relations: cases, materials, and commentary on the EU as an international legal actor. - 2nd ed.

    NARCIS (Netherlands)

    P.J. Kuijper; J. Wouters; F. Hoffmeister; G. de Baere; T. Ramopoulos

    2015-01-01

    The two years since publication of the first edition of The Law of EU External Relations: Cases, Materials, and Commentary on the EU as an International Actor have been characterized by the large amount of case law on the new provisions on external relations, which have found their way into the Lisb

  1. AVOIDING MAZIBUKO: WATER SECURITY AND CONSTITUTIONAL RIGHTS IN SOUTHERN AFRICAN CASE LAW

    Directory of Open Access Journals (Sweden)

    Ed Couzens

    2015-11-01

    Full Text Available The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The Constitutional Court ruled that the right of access to sufficient water does not require that the state provide every person upon demand and without more with sufficient water. Nor does the obligation confer on any person a right to claim "sufficient water" from the state immediately. Reactions to the judgment have been consistently negative, with criticisms largely focusing on the Court's apparent lack of appreciation for the situation of the very poor. It is not easy, however, to overturn a decision of the Constitutional Court and South Africa will need to work within the constraints of the precedent for many years to come. It is suggested in this article that two subsequent, recent judgments (one of the Supreme Court of Appeal in South Africa, City of Cape Town v Strümpher, 2012, and one of the High Court in Zimbabwe, Mushoriwa v City of Harare, 2014 show how it might be possible for courts to avoid the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will undoubtedly be more court cases to come involving access to water. Conclusions are drawn as to how the two judgments considered might offer a way to ameliorate the harsh

  2. The Kansas case of K.M.H. US law concerning the legal status of known sperm donors

    Directory of Open Access Journals (Sweden)

    Nancy G. Maxwell

    2008-06-01

    Full Text Available This article examines the Kansas Supreme Court case of K.M.H., 169 P.3d 1025 (Kan. 2007 within the context of an increasing body of US case law that addresses the legal status of known sperm donors vis-à-vis their biological children born to women who are not in heterosexual marriages. The article begins with an explanation of US parentage law and then reviews and synthesizes the cases leading up to the K.M.H. decision. The article then details the four different opinions in the K.M.H. case, and, in particular, lays out the discussion of the constitutional challenges to the Kansas sperm donor statute. Next the article discusses how the previous known sperm donor cases impacted the sperm donor’s arguments in K.M.H., and how these cases failed to support his claim for parental rights. The article continues with a review of two more decisions, issued after the K.M.H. case, incorporating these cases into the evolving trends discerned in the recent court decisions. The article concludes by summarizing K.M.H.’s position within that evolution.

  3. The World Court’s Ongoing Contribution to International Water Law: The Pulp Mills Case between Argentina and Uruguay

    Directory of Open Access Journals (Sweden)

    Owen McIntyre

    2011-06-01

    Full Text Available The judgment of the International Court of Justice in the Pulp Mills (Argentina v. Uruguay case makes a very important contribution to international law relating to shared international water resources and to international environmental law more generally. It does much to clarify the relationship between procedural and substantive rules of international environmental law. The Court linked interstate notification of new projects to the satisfaction of the customary due diligence obligation to prevent significant transboundary harm. It found that environmental impact assessment (EIA is an essential requirement of customary international law in respect of activities having potential transboundary effects. The real significance of the judgment is that it held that the duty to notify, and the related duty to conduct an EIA taking account of transboundary impacts, exist in customary international law and thus apply to all states, not just those that have concluded international agreements containing such obligations. The Court confirmed that for shared international water resources, the principle of equitable and reasonable utilisation, universally accepted as the cardinal rule of international water law, is virtually synonymous with the concept of sustainable development, and suggests that considerations of environmental protection are absolutely integral to the equitable balancing of interests involved. The judgment makes it clear that the principle of equitable utilisation ought to be understood as a process, rather than a normatively determinative rule. This ought to help to address widespread confusion about the nature of the key rules and principles of international water resources law and its role in the resolution of water resources disputes and in environmental diplomacy more generally.

  4. International commercial Arbitration and the challenge of mandatory rules of law: the case of arbitration in antitrust claims

    Directory of Open Access Journals (Sweden)

    Seyed Mohammad Tabatabaei Nejad

    2015-05-01

    Full Text Available For decades, the approach of legal systems towards private arbitration in competition law has been characterized by a certain mistrust or suspicion. Initially, this attitude may somehow have been linked to the uncertainty as to the arbitrability of competition law issues, in view of the fact that, in competition law matters generally, public interests are heavily at stake. In fact arbitration is a mechanism for pursuing a balance between the conflicts of parties’ demands. However during the time, more gates have been opened for arbitration and it got not only a private means but a way in which both private and public interests are secured. The public interests so are factors that shall be precisely considered to prevent the situation in which courts rejecting award in reviewing stage due to the fact that the public policy aspects of the case are not complied. In this article we scrutinize the challenges arbitration may encounter especially in respect of competition law in an international environment in respect of application of mandatory laws.

  5. On Jurisprudence Base and Dispute Settlement of Global Public Health Governance%公共卫生全球治理的法理基础与争端解决

    Institute of Scientific and Technical Information of China (English)

    赵洲

    2011-01-01

    It is necessary to establish certain principle of international law and jurisprudence base to effectively guide and push global public health governance, and "Responsibility to Protect" might be possible jurisprudence guidance and method. Therefore, the connotation of "Responsibility to Protect"n global public health governance must be explored in the international society. To settle various disputes in question, "sponsibility to Protect" all be applied according to different situations.%为有效地指导和推进公共卫生全球治理,需要确立必要的国际法原则和法理基础,“保护的责任”将成为一种可能的法理指导和方法。为此,国际社会应当在公共卫生全球治理领域形成“保护的责任”的特有内涵。对于公共卫生全球治理中的各种争端,可根据不同的争端情形适用“保护的责任”予以应对处理。

  6. Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law

    Directory of Open Access Journals (Sweden)

    L du Plessis

    2009-12-01

    Full Text Available This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly eccentric claims of (assumedly idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2 BCLR 99 (CC, 2008 (1 SA 474 (CC (hereafter Pillay. Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural rights. Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1 of the Constitution of Republic of South Africa 1996 can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3 of the Constitution.

  7. The double power law in human collaboration behavior: The case of Wikipedia

    Science.gov (United States)

    Kwon, Okyu; Son, Woo-Sik; Jung, Woo-Sung

    2016-11-01

    We study human behavior in terms of the inter-event time distribution of revision behavior on Wikipedia, an online collaborative encyclopedia. We observe a double power law distribution for the inter-editing behavior at the population level and a single power law distribution at the individual level. Although interactions between users are indirect or moderate on Wikipedia, we determine that the synchronized editing behavior among users plays a key role in determining the slope of the tail of the double power law distribution.

  8. Recent developments in health insurance, life insurance, and disability insurance case law.

    Science.gov (United States)

    Hasman, Joseph J; Chittenden, William A; Doolin, Elizabeth G; Wall, Julie F

    2008-01-01

    This survey reviews significant state and federal court decisions from 2006 and 2007 involving health, life, and disability insurance. Also reviewed is a June 2008 Supreme Court decision in the disability insurance realm, affirming that a conflict of interest exists when an ERISA plan sponsor or insurer fulfills the dual role of determining plan benefits and paying those benefits but noting that the conflict is merely one factor in considering the legality of benefit denials. In addition, this years' survey includes compelling decisions in the life and health arena, including cases addressing statutory penalties and mandated benefits, as well as some ERISA decisions of note. This year, the Texas Supreme Court held that Texas's most recent version of the prompt payment statute abolished the common law interpleader exception and allowed the prevailing adverse claimant in an interpleader action filed beyond the sixty-day statutory period to recover statutory interest and attorney fees from the insurer. Meanwhile, the Court of Appeals of New York upheld the constitutionality of a statute mandating coverage for contraceptives in those employer-sponsored health plans that offer prescription drug coverage, including those plans sponsored by faith-based social service organizations. In the ERISA context, litigants continue to fight over the standard of review with varying results. In a unique assault on the arbitrary and capricious standard of review, the Fourth Circuit found that an ERISA plan abused its discretion when it failed to apply the doctrine of contra proferentem to construe ambiguous plan terms against itself. In more hopeful news for plan insurers, the Tenth Circuit held that claimants are not entitled to review and rebut medical opinions generated during the administrative appeal of a claim denial before a final decision is reached unless such reports contain new factual information.

  9. Ubuntu and the law in South Africa

    Directory of Open Access Journals (Sweden)

    Y Mokgoro

    1998-11-01

    Full Text Available The new constitutional dispensation, like the idea of freedom in South Africa, is also not free of scepticism. Many a time when crime and criminal activity are rife, sceptics would lament the absence of ubuntu in society and attribute this absence to what they view as the permissiveness which is said to have been brought about by the Constitution with its entrenched Bill of Rights.Firstly, I would like to take this opportunity and (attempt to demonstrate the irony that the absence of the values of ubuntu in society that people often lament about and attribute to the existence of the Constitution with its demands for respect for human rights when crime becomes rife, are the very same values that the Constitution in general and the Bill of Rights in particular aim to inculcate in our society.Secondly, against the background of the call for an African renaissance that has now become topical globally, I would like to demonstrate the potential that traditional African values of ubuntu have for influencing the development of a new South African law and jurisprudence.The concept ubuntu, like many African concepts, is not easily definable. In an attempt to define it, the concept has generally been described as a world-view of African societies and a determining factor in the formation of perceptions which influence social conduct. It has also been described as a philosophy of life.Much as South Africa is a multicultural society, indigenous law has not featured in the mainstream of South African jurisprudence. Without a doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi cultures.The values of ubuntu are therefore an integral part of that value system which had been established by the Interim Constitution.The founding values of the democracy established by this new Constitution arguably coincide with some key values of ubuntu(ism.Ubuntu(-ism, which is central to age-old African custom and tradition however, abounds

  10. The Soviet Sources of Chinese Jurisprudence -Discipline Nature and Knowledge Sources of Chinese Jurisprudence as Primary Investigating Object%中国法学的苏联渊源——以中国法学的学科性质和知识来源为主要考察对象

    Institute of Scientific and Technical Information of China (English)

    王奇才; 高戚昕峤

    2012-01-01

    苏联法学对中国法学的影响,从中国法学的学科性质和知识来源来看,主要表现在资本主义法学与社会主义法学的关系、革命时期法学与执政时期法学的关系、法学与意识形态、法学的研究对象、法学与实践、法学的知识来源、法学研究的范式与方法、法学学科的独立性、法学教育的模式等九个方面。关于中国法学与苏联法学之间的渊源关系,一是要反思中国法学与苏联法学的渊源关系背后的中国法学与苏联模式的渊源关系,二是要反思关于中国法学与苏联法学渊源关系的几种主要研究视角,积极影响和消极影响、路径依赖两种视角并未真正抓住问题的核心,从普遍性与特殊性辩证法的视角展开讨论将是一种更有助益的视角。%Soviet jurisprudence impacts on Chinese jurisprudence, from the discipline nature and knowl- edge sources of Chinese jurisprudence, mainly express in nine aspects, that is, the relationship between capi- talist and socialist jurisprudence, the relationship between revolution and governing period jurisprudence, ju- risprudence and ideology, research object of jurisprudence, jurisprudence and practice, knowledge sources of jurisprudence, patterns and methods of jurisprudence study, independence of jurisprudence discipline and modes of jurisprudence education. As to the source relationship between Chinese and Soviet jurisprudence, first, we need to rethink the source relationships between Chinese jurisprudence and Soviet modes, which hide behind the source relationships between Chinese and Soviet jurisprudence. Second, we need to rethink several primary study perspectives about the source relationships between Chinese and Soviet jurisprudence. The two perspectives of positive and negative impacts and path dependence havent captured indeed the core of issues, and discussing from the dialectic perspective of universality and particularity will be a

  11. Night work, fatigued driving and traffic law: the case of police officers.

    Science.gov (United States)

    Radun, Igor; Ohisalo, Jussi; Radun, Jenni; Kecklund, Göran

    2011-01-01

    Given the well-known difficulties in defining and detecting fatigue, it is a real challenge to incorporate it into either traffic or criminal law. Finnish traffic law forbids fatigued driving "only" on a general level concerning the driver's fitness to drive. We present several comments from Finnish traffic and local police officers regarding their own experiences of driving while fatigued. The comments were extracted from a larger survey of traffic (N=129) and local (N=100) police officers, and prosecutors (N=96). Although the main topic of the survey was the application of the law that forbids fatigued driving, some police officers raised the issue of their own behavior in this respect. We argue that many shift workers, including police officers, break the law, especially when driving home after a night shift.

  12. A Zonal Similarity Analysis Of Friction Factors: Case Study 1: Pipe Flow Of Power Law Fluids

    CERN Document Server

    Trinh, Khanh Tuoc

    2010-01-01

    A zonal similarity analysis of friction factors in pipe flow of power law fluids is presented. It uses the critical Reynolds number and friction factor at transition as estimates of the normalised velocity and distance between the wall and log-law layers and successfully collapses both Newtonian and non-Newtonian data for laminar, transition and turbulent flows. Key words: zonal similarity analysis, friction factor, Reynolds number, transition

  13. A re-examination of the case for a locus standi rule in public law

    OpenAIRE

    Hough, Barry

    1997-01-01

    The doctrine of locus standi, or standing, determines the competence of a plaintiff to assert the matter of their complaint before the court. Since an individual lacking locus standi is an incompetent plaintiff, it follows that, in public law, government can exceed or abuse its powers with impunity provided no such "qualified" litigant seeks the intervention of the court. This appears directly in conflict with the constitutional requirement of legality. Public law is about imposing legal cont...

  14. The Long Haul Effects of Interest Arbitration: The Case of New York State's Taylor Law

    OpenAIRE

    Thomas Kochan; David B. Lipsky; Mary Newhart; Alan Benson

    2010-01-01

    The authors examine debates about the effects of mandatory interest arbitration on police and firefighters in New York State under the Taylor Law from 1974 to 2007. Comparing experience with interest arbitration in the first three years after the law was adopted with experiences from 1995 to 2007, the authors find that no strikes occurred under arbitration and that rates of dependence on arbitration declined considerably. Moreover, the effectiveness of mediation prior to and during arbitratio...

  15. Challenge: Code of environmental law; Herausforderung Umweltgesetzbuch

    Energy Technology Data Exchange (ETDEWEB)

    NONE

    2007-07-15

    Within the meeting ''Challenge: Code of environmental law'' at 16th February, 2007, in Berlin (Federal Republic of Germany) and organized by the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (Berlin, Federal Republic of Germany), the following lectures were held: (a) the new code of environmental law as a contribution to more modernness and efficiency in the environmental politics (Sigmar Gabriel); (b) The code of environmental law from the view of the economy (Martin Wansleben); (c) Significance of the code of environmental law from the view of jurisprudence (Michael Kloepfer); (d) Targets, content and utility of the code of environmental law: Summary of the panel discussion (Tanja Goenner, Klaus Mittelbach, Juergen Resch, Hans-Joachim Koch, Alfred Wirtz, Andreas Troge (moderator)); (e) Considerations to the coding of water law in the code of environmental law (Helge Wendenburg); (f) Considerations to the coding of water law: Summary of te discussion; (g) Considerations to the coding of nature conservation law (Jochen Flasbarth); (h) Considerations to the coding of nature conservation law: Summary of the discussion.

  16. Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A First Balance

    Directory of Open Access Journals (Sweden)

    Joseph Marko

    2004-12-01

    Full Text Available The article reflects the experiences of the author after having served as one of the three international judges of the Constitutional Court of BiH from 1997 to 2002. Based on the relevant case-law of the Constitutional Court it gives a basic overview of the constitutional structure of BiH and analyses the position of the Court vis-à-vis other institutions established under the Dayton-Agreement and the powers of judicial review and human rights protection based on its appellate jurisdiction. Moreover means of interpretation and the elements of constitutional doctrine elaborated through case-law as well as organisational and procedural matters such as the role of dissenting opinions are discussed. In conclusion the article reflects the role of the Constitutional Court in transition from an ethnically divided and war-torn society to democracy and the effective protection of human and minority rights.

  17. Educational Rights of Handicapped Children: Three Federal Statutes and an Evolving Jurisprudence. Part II: Future Rights and Remedies.

    Science.gov (United States)

    Wegner, Judith Welch

    1988-01-01

    Argues that special education jurisprudence is a composite creation resulting from the interplay of section 504 of the Rehabilitation Act, the Education for All Handicapped Children Act, and the Handicapped Children's Protection Act of 1986. These statutes embody a coherent approach for ensuring that handicapped children receive needed educational…

  18. Law and Order or Global Disorder

    Directory of Open Access Journals (Sweden)

    Bidzina SAVANELI

    2013-08-01

    Full Text Available Substantial problem of Humankind is at the junction of Philosophy, Sociology and Jurisprudence. Based on my attempt to harmonize philosophies of Kant, Hegel and Husserl, and studies of famous legal scholars Bentham, Ostin, Holmes, Kelsen, Ehrlich, Reinach, Hart, Llevellin, Kardozo, David, Dworkin, Rawls concerning the problems of public law, private law, comparative law, justice, human rights, post-modernism, and Georgian philosophical, sociological and legal traditions since XII century, I discovered a synergetic model of dialectical, spiral, evolutionary and mutual transformation of irrationalism and rationalism as the effective method of conflicts prevention and peacefully resolution at the International, Regional, National and Local levels under the auspice of Bill of Human Rights.

  19. Law as Theory: Constitutive Thought in the Formation of (Legal Practice

    Directory of Open Access Journals (Sweden)

    Peter Fitzpatrick

    2010-12-01

    Full Text Available Typical but puzzling engagements with law in Jurisprudence and in civil religion are drawn upon to evoke a dimension of law essential to its practice, a dimension relegated in usual conceptions of law. That dimension entails a responsive regard for whatever is found also to be the generative force of theory, whether legal or social theory. Law in its practical guise is thence found to have a constituent correspondence to theory. Legal practice can no more escape theory than theory can escape practice.

  20. Status of will governance in determination of law governing business documents validity

    Directory of Open Access Journals (Sweden)

    Peyman Mohammadi

    2014-02-01

    Full Text Available Law governing substantive conditions of business documents issuance is one of important problems facing investigators. Since law governing business contracts and documents is governing out of limits of national law today, value and effect of will governance is of interest to jurisprudents because contract parties are allowed to determine contract effects and terms consensually to the extent to which these effects and terms do not contradict public order and imperative law and, in fact, they can replace law with these agreed terms. In Iranian law, although it is accepted, in principle, that law agreed upon by parties is the same law governing constitutional terms of issuing business documents, some took an opposite perspective since they consider Article 968 of civil law imperative. As issues regarding intent, consent, and capacity are considered as having relation to domestic public order, it seems that acceptance of governance of agreed law over these conditions of business documents  issuance is difficult.

  1. Environmental law. 2. rev. and enl. ed.; Umweltrecht

    Energy Technology Data Exchange (ETDEWEB)

    Koch, H.J. (ed.) [Hamburg Univ. (Germany). Forschungsstelle Umweltrecht

    2007-07-01

    The text book under consideration already is addressed to lawyers and students of jurisprudence. It enables an introduction into the general environmental law and consists of sixteen autonomous chapters: (a) International law in the field of ecology (Matthias Buck, Roda Verheyen); (b) European and national environmental constitutional law (Johannes Caspar); (c) General environmental administrative law (Ulrich Ramsauer); (d) Pollution abatement law (Hans-Joachim Koch); (e) Water protection law (Silke Laskowski, Cornelia Ziehm); (f) Recycling economy law and waste management law (Martin Dieckmann, Moritz Reese); (g) Nature conservation law (Christian Maass, Peter Schuette); (h) Soil conservation law and contaminated sites law (Nikolaus Herrmann); (i) Energy legal regulations as an instrument of environmental protection (Wolfgang Ewer); (j) Atomic energy law (Klaus Jankowski); (k) Genetic engineering law (Ursula Prall); (l) Law of hazardous materials (Eckhard Pache); (m) Environmental law in planning law (Nikolaus Hermann); (n) Environment and traffic (Philipp Hermann, Ekkehard Hofmann); (o) Agriculture and ecology (Ulf-Henning Moeker); (p) Liberal trade and environmental protection (Matthias Buck).

  2. Overturning anti-miscegenation laws: news media coverage of the Lovings' legal case against the state of Virginia.

    Science.gov (United States)

    Hoewe, Jennifer; Zeldes, Geri Alumit

    2012-01-01

    This study fills a gap in scholarship by exploring historical news coverage of interracial relationships. It examines coverage by The New York Times, Washington Post and Times-Herald, and Chicago Tribune of the progression of the landmark civil rights case of Loving v. Virginia, in which the Supreme Court overturned Virginia's anti-miscegenation law, which prohibited marriage between any White and non-White person. An analysis of the frames and sources used in these publications' news stories about the case indicate all three publications' coverage favored the Lovings.

  3. Interactions between Corporate Governance, Bankruptcy Law and Firms Debt Financing: the Brazilian Case

    Directory of Open Access Journals (Sweden)

    Bruno Funchal

    2008-07-01

    Full Text Available This paper examines the relationship between corporate governance level and the bankruptcy law for such debt variables as firms’ cost of debt and amount (and variation of debt. Our empirical results are consistent with the model's prediction. First, we find that the better the corporate governance, the lower the cost of debt. Second, we find that better corporate governance arrangements relate to firms with higher amounts of debt. Finally we find that better governance and harsher bankruptcy laws have a positive effect on debt. Moreover, this effect is stronger for firms with worse corporate governance, which indicates that the law works as a substitute for governance practices to protect creditors' interests.

  4. Extension of the preliminary rulings procedure outside the scope of Community law: The Dzodzi line of cases

    Directory of Open Access Journals (Sweden)

    Saulius Lukas Kaleda

    2000-09-01

    Full Text Available The Dzodzi line of cases evidence that the functioning of the preliminary rulings procedure under Article 234 EC is not restricted to the scope of Community law, but extends also to the cases governed by national law referring to certain Community provision or concept. Most controversially in the context of this far-reaching pronouncement, the Court dismissed the views expressed by its Advocates General, actually, in all the cases of this type (recently in Roman Angonese , 6 June 2000. Ten years after the judgment in Dzodzi has been delivered, the future development of the tendency seems to be still open to radically different solutions. A compromise solution may be found in the acceptance of jurisdiction in comparable situations, ascertained on the basis of relationship between the interpretation and the facts of a particular case. This solution should be based on the assessment of the ability to provide helpful interpretation and the possibility to define a legal problem precisely, as a prerequisite for the full exchange of arguments. Then, it could provide a consistent attitude of the Court towards all the cases on the admissibility of references under Article 234 EC. The uncertainty inevitably following such a solution could be outweighed by the need to retain a flexible and cooperative attitude.

  5. Retrieval of Legal Information Through Discovery Layers: A Case Study Related to Indian Law Libraries

    Directory of Open Access Journals (Sweden)

    Kushwah, Shivpal Singh

    2016-09-01

    Full Text Available Purpose. The purpose of this paper is to analyze and evaluate discovery layer search tools for retrieval of legal information in Indian law libraries. This paper covers current practices in legal information retrieval with special reference to Indian academic law libraries, and analyses its importance in the domain of law.Design/Methodology/Approach. A web survey and observational study method are used to collect the data. Data related to the discovery tools were collected using email and further discussion held with the discovery layer/ tool /product developers and their representatives.Findings. Results show that most of the Indian law libraries are subscribing to bundles of legal information resources such as Hein Online, JSTOR, LexisNexis Academic, Manupatra, Westlaw India, SCC web, AIR Online (CDROM, and so on. International legal and academic resources are compatible with discovery tools because they support various standards related to online publishing and dissemination such as OAI/PMH, Open URL, MARC21, and Z39.50, but Indian legal resources such as Manupatra, Air, and SCC are not compatible with the discovery layers. The central index is one of the important components in a discovery search interface, and discovery layer services/tools could be useful for Indian law libraries also if they can include multiple legal and academic resources in their central index. But present practices and observations reveal that discovery layers are not providing facility to cover legal information resources. Therefore, in the present form, discovery tools are not very useful; they are an incomplete and half solution for Indian libraries because all available Indian legal resources available in the law libraries are not covered.Originality/Value. Very limited research or published literature is available in the area of discovery layers and their compatibility with legal information resources.

  6. The World Court's emphasis on procedural rules in the recent Pulp Mills case: contributing to the progressive and coherent development of international water law

    OpenAIRE

    McIntyre, Owen

    2011-01-01

    The judgment of the International Court of Justice in the Pulp Mills (Argentina v. Uruguay) case makes a very important contribution to international law relating to shared international water resources and to international environmental law more generally. It does much to clarify the relationship between procedural and substantive rules of international environmental law. The Court linked interstate notification of new projects to the satisfaction of the customary due diligence obligation to...

  7. Sporting Justifications under EU Free Movement and Competition Law: The case of the football "transfer system"

    OpenAIRE

    Geoff Pearson; Pearson, G

    2015-01-01

    Governing bodies have significant autonomy in the organisation of professional sport in the EU, a situation now supported by Article 165 TFEU. However the post-Lisbon competence for sport does not grant any exemption for practices that infringe fundamental freedoms or competition law; such infringements can only be justified where they are a proportionate response to an inherent need in that sport. The football ‘transfer system’ has been the subject of a series of EU law chall...

  8. STANDARDIZATION OF MACEDONIAN’S JUDICIAL PRACTICE WITH THE ECTHR JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Elena ANDREEVSKA

    2011-08-01

    Full Text Available The role of the Strasbourg Court acquires controlling dimension in the application of human rights. Measures taken at national level, should provide effective domestic remedies, to strengthen the national legal order and to bring it closer to compliance with the European Convention on Human Rights (ECHR and the legal practice of the Court. Macedonia amended the Law on Courts in 2008, and accepted a very significant solution, thus enabling direct application of the ECHR case-law by the Supreme Court of the Republic of Macedonia, when deciding on trials within a reasonable time. However, should be keep in mind that the Committee of the Ministers, in 2004 already, noted that Convention is integral part of the national law in totality of the States Parties. The consequences of this integration are of primary importance in the context of Macedonian’s judicial practice. Thus, a fundamental question which arises today consists in knowing if the national judge can really apply not only Convention but also the decisions of the Court, if necessary with the detriment of the contrary national law. In this respect, I took note with the country experiences where the decisions of the Court are applied directly by national authorities, the Macedonian legal system and in this context the needs of judicial reforms.

  9. Danish Case Law on United Nations UNCITRAL Texts (CLOUT) no. 100, Abstracts, CLOUT Cases 992-999

    DEFF Research Database (Denmark)

    Lookofsky, Joseph

    2010-01-01

    The United Nations UNCITRAL Secretariat has established a system for collecting and disseminating information on court decisions and arbitral awards relating to the Conventions and Model Laws that have emanated from the work of the Commission. The purpose of the system is to promote international...

  10. (The right to) personal autonomy in the case law of the European Court of Human Rights (nota opgesteld ten behoeve van de Staatscommissie Grondwet)

    NARCIS (Netherlands)

    Koffeman, N.R.

    2010-01-01

    This study aims to provide an overview of how the principle of personal autonomy has taken shape in the jurisprudence of the European Court of Human Rights (ECtHR). As the separate sections of this study will show, the principle or right in fact can be said to exist of several elements, like gender

  11. Education and Self-Government: The Right to Education under State Constitutional Law.

    Science.gov (United States)

    Hubsch, Allen W.

    1989-01-01

    Examines state court education jurisprudence in three areas: (1) classical liberalism and republicanism; (2) the current understanding of federal equal protection and due process education through United States Supreme Court decisions; and (3) school finance cases litigated in state courts. (MLF)

  12. Using Photographs to Probe Students' Understanding of Physical Concepts: The Case of Newton's 3rd Law

    Science.gov (United States)

    Eshach, Haim

    2010-08-01

    The starting point of the present research is the following question: since we live in an age that makes increasing use of visual representations of all sorts, is not the visual representation a learner constructs a window into his/her understanding of what is or is not being learned? Following this direction of inquiry, the present preliminary study introduces and evaluates a novel technique for pinpointing learners’ misconceptions, namely, one that has learners create and interpret their own photographs (CIP). 27 high-school students and 26 pre-service teacher trainees were asked to assume the role of textbook designers and create a display—photograph plus attached verbal explanation—which, in their opinion, best depicted Newton’s 3rd law. Subsequent analysis of the participants’ photographs yielded the following six misconception categories: 3rd law not depicted; 3rd law depicts a sequence of events; tendency to introduce irrelevant entities in explanations; the word ‘reaction’ used colloquially; tendency to restrict the application of the third law to dynamic situations; and informal explanations in which the word “force” is absent. The findings indicate that, indeed, the CIP method can be effectively employed to elicit, detect, and investigate learners’ misconceptions. The CIP method joins the growing efforts to utilize the yet relatively untapped potential of visual tools for science education purposes.

  13. Mandated Change Gone Wrong? A Case Study of Law-Based School Reform in South Africa

    Science.gov (United States)

    Bisschoff, Tom

    2009-01-01

    Purpose: This paper aims to explore and describe the limits of recent law-based school reform in South Africa from an education management perspective. Design/methodology/approach: The research design consists of a qualitative, investigative, descriptive and contextual design which Merriam would classify as a basic or generic design type.…

  14. Breakdown of the Robustness Property of Lotka's Law: The Case of Adjusted Counts for Multiauthorship Attribution.

    Science.gov (United States)

    Rousseau, Ronald

    1992-01-01

    Examines the robustness property of Lotka's law for scholarly papers with more than one author. Adjusted counts for assigning credit to authors proportionally are explained, and two bibliographies are analyzed using frequency distributions that show where the robustness property breaks down. (nine references) (LRW)

  15. Is it a power law distribution? The case of economic contractions

    CERN Document Server

    Pueyo, Salvador

    2013-01-01

    One of the first steps to understand and forecast economic downturns is identifying their frequency distribution, but it remains uncertain. This problem is common in phenomena displaying power-law-like distributions. Power laws play a central role in complex systems theory; therefore, the current limitations in the identification of this distribution in empirical data are a major obstacle to pursue the insights that the complexity approach offers in many fields. This paper addresses this issue by introducing a reliable methodology with a solid theoretical foundation, the Taylor Series-Based Power Law Range Identification Method. When applied to time series from 39 countries, this method reveals a well-defined power law in the relative per capita GDP contractions that span from 5.53% to 50%, comprising 263 events. However, this observation does not suffice to attribute recessions to some specific mechanism, such as self-organized criticality. The paper highlights a set of points requiring more study so as to d...

  16. Can "extreme poverty" protect against refoulement? : Economic refugees in the light of recent case law of the European Court of Human Rights

    NARCIS (Netherlands)

    Flegar, Veronika

    2015-01-01

    “Economic refugees” largely remain outside the international protection regimes of refugee and human rights law. Nevertheless, recent case law of the European Court of Human Rights (ECtHR) opens up limited possibilities for economic refugees to rely on Article 3 of the European Convention on Human R

  17. Do Australian Fire Brigades Owe a Common Law Duty of Care? A Review of Three Recent Cases

    Directory of Open Access Journals (Sweden)

    Michael Eburn

    2013-12-01

    Full Text Available The law regarding the fire service’s liability for alleged negligence in the way they plan for or respond to a fire is reasonably untested. This paper reports on three cases that were decided in 2012 by the Supreme Courts of New South Wales, Tasmania and the Australian Capital Territory. It is argued that the weight of authority is that the fire brigades are established to provide fire services for the common good, not for individual benefit, and the financial burden of unfortunate operational decisions should be borne by insurers or by the uninsured. Even so, two Supreme Courts have arrived at different conclusions with respect to the question of whether or not the NSW Rural Fire Service owes a common law duty of care to those at risk from bushfire. It is therefore argued that the issue of duty of care would benefit from a determination by the High Court of Australia.

  18. An examination of stakeholder attitudes and understanding of therapeutic jurisprudence in a mental health court.

    Science.gov (United States)

    Lim, Loraine; Day, Andrew

    2016-01-01

    Mental health courts represent a key component of contemporary responses to mental illness and disability in the criminal justice system, and yet there is uncertainty about how these courts should balance their punishment and treatment roles. This paper reports an analysis of interviews with court professionals which considers their understanding of the rationale underpinning an Australian mental health court, its effectiveness in achieving its criminal justice and clinical goals, and of broader notions of therapeutic jurisprudence. This reveals considerable support for diversionary mental health court programs of this type and professional confidence that this type of program is effective. However, the analysis also highlights conflict in the practice frameworks of the different professional groups who regularly contribute to the operations of the court. Suggestions to enhance service delivery are offered. PMID:27044525

  19. 错误出生之侵权损害赔偿%Tort Law Compensation for Wrongful Birth Cases

    Institute of Scientific and Technical Information of China (English)

    2013-01-01

    Since“the Tort Liability Law”was published.Many scholars debate that if the cases of“wrongful birth”shuold bring into the scope of“Tort Liability Law”. In order to make the aggrieved party of the“Wrong-ful birth”case can gain the maximum legal relief. The article definite that the case of“wrongful birth”can be used"tort liability law". In addition,starting from the theory of tort law, do legal analysis for that the case of“wrongful birth”can applicable“TheTort Liability Law”. To clarify the related concept of“wrongful birth”and the scope of tort law compensation. Finally,provide some reference to the judicial practice in China.%  自《侵权责任法》颁布以来,学者就错误出生案件能否纳入《侵权责任法》的调整范围展开了不同程度的讨论。为使“错误出生”案件中受侵害一方能够获得最大程度的法律救济,文章肯定“错误出生”案件可以适用《侵权责任法》的相关法律规定,并从侵权法理论出发,系统分析了“错误出生”案件适用《侵权责任法》的法理基础,厘清了“错误出生”的相关概念以及“错误出生”损害赔偿的范围,力图给我国的司法实践活动提供一些参考。

  20. Tort Law Compensation for Wrongful Birth Cases%错误出生之侵权损害赔偿

    Institute of Scientific and Technical Information of China (English)

    2013-01-01

      自《侵权责任法》颁布以来,学者就错误出生案件能否纳入《侵权责任法》的调整范围展开了不同程度的讨论。为使“错误出生”案件中受侵害一方能够获得最大程度的法律救济,文章肯定“错误出生”案件可以适用《侵权责任法》的相关法律规定,并从侵权法理论出发,系统分析了“错误出生”案件适用《侵权责任法》的法理基础,厘清了“错误出生”的相关概念以及“错误出生”损害赔偿的范围,力图给我国的司法实践活动提供一些参考。%Since“the Tort Liability Law”was published.Many scholars debate that if the cases of“wrongful birth”shuold bring into the scope of“Tort Liability Law”. In order to make the aggrieved party of the“Wrong-ful birth”case can gain the maximum legal relief. The article definite that the case of“wrongful birth”can be used"tort liability law". In addition,starting from the theory of tort law, do legal analysis for that the case of“wrongful birth”can applicable“TheTort Liability Law”. To clarify the related concept of“wrongful birth”and the scope of tort law compensation. Finally,provide some reference to the judicial practice in China.

  1. 宪法学视野下的和谐社会建构探析%On Construction of Harmonious Society from the Perspective of Constitutional Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    陈雄; 胡清梅

    2011-01-01

    In the process of building a harmonious society, the Law and Constitution are in key position. In the perspective of constitutional jurisprudence, preventing the abuse of state power is the fundamental idea of building a harmonious society, using the constitutional system of state power regulati ciety, adapting constitution to guarantee the fundamental rights of certain on is the key to building a harmonious socitizens is the basis for building a harmonious society.%在和谐社会建构过程中,法治和宪法居于核心地位。在宪法学视野下,防范国家权力滥用是和谐社会建构的根本理念,用宪法规制国家权力是和谐社会建构的关键,用宪法保障特定公民的基本权利是和谐社会建构的基础。

  2. 安乐死问题法理再探%A Re-discussion of the Euthanasia Problem from the Perspective of Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    尚沛孜

    2014-01-01

    Euthanasia hasn't been universally recognized by laws in many countries yet, but theoretical debates to approve of euthanasia have never been stopped and utilitarianism is the core of jurisprudence that supports their viewpoints. Utilitarianism with " pursuing happiness and avoiding suffering" as its value embodies the thought of " choosing the light between two evils" , and it is also known as " principle of the greatest happiness" . Legal system construction of euthanasia from the utilitarian perspective will take on a new look.%安乐死尚未被各国法律普遍认可,但认同安乐死的理论抗争从未停歇,支撑其主张的法理核心当为功利主义。功利主义以人性的“趋乐避苦”为其价值诉求,体现了“两害相权取其轻”的思想,又被称为“最大幸福主义”。关于安乐死问题的法制建设,以功利主义审视之,会呈现出全新的面貌。

  3. 安乐死问题法理再探%A Re-discussion of the Euthanasia Problem from the Perspective of Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    尚沛孜

    2014-01-01

    安乐死尚未被各国法律普遍认可,但认同安乐死的理论抗争从未停歇,支撑其主张的法理核心当为功利主义。功利主义以人性的“趋乐避苦”为其价值诉求,体现了“两害相权取其轻”的思想,又被称为“最大幸福主义”。关于安乐死问题的法制建设,以功利主义审视之,会呈现出全新的面貌。%Euthanasia hasn't been universally recognized by laws in many countries yet, but theoretical debates to approve of euthanasia have never been stopped and utilitarianism is the core of jurisprudence that supports their viewpoints. Utilitarianism with " pursuing happiness and avoiding suffering" as its value embodies the thought of " choosing the light between two evils" , and it is also known as " principle of the greatest happiness" . Legal system construction of euthanasia from the utilitarian perspective will take on a new look.

  4. The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law

    Directory of Open Access Journals (Sweden)

    Andrea Lollini

    2012-05-01

    Full Text Available This article aims to analyse the phenomenon of the diffusion of interpretive paradigms or argumentation models between constitutional courts. This phenomenon involves the importation of parameters - defined here as extra-systemic to a specific legal system - and the use of the comparative method in applying constitutional texts.The main subject of this study is the analysis of the first 11 years of South African constitutional jurisprudence, which is a convenient scenario since a constitutional provision enables the Constitutional Court to 'consider foreign law' when interpreting the Bill of Rights. In fact, this led to the wide use of foreign jurisprudence and legislation (from which were extracted argumentation models, patterns of balancing between principles and sometimes actual normative 'meanings': in other words, extra-systemic legal inferences. This article shows the existence of several patterns of legal argumentation based on foreign law which were developed by the South African Constitutional Court.

  5. Statefinder Parameters for Coupled Quintessence Scenario in a Power Law Case

    Institute of Scientific and Technical Information of China (English)

    2005-01-01

    We investigate a coupled quintessence scenario, which can provide a natural solution to the cosmic coincidence problem. We assume that the mass of dark matter particles depends on a power law function of the scalar field associated to dark energy and meanwhile the scalar field evolves in a power law potential. Since the dynamics of this system is dominated by an attractor solution, the mass of dark matter particles is forced to change with time as to ensure that the ratio between the energy densities of dark matter and dark energy becomes a constant at late times,and one thus solves the cosmic coincidence problem naturally. We then apply a statefinder diagnostic to this coupled quintessence scenario. It is shown that the evolving trajectory of this scenario in the s-r diagram is quite different from those of other dark energy models.

  6. Reflexive law, corporate social responsibility and the evolution of labour standards: the case of working time

    OpenAIRE

    Catherine Barnard; Simon Deakin; Richard Hobbs

    2004-01-01

    Through an empirical study of working time in the United Kingdom, we explore the scope for initiatives based on corporate social responsibility (CSR) to engender voluntary action by employers to raise labour standards. Our evidence suggests that a CSR-based approach faces considerable problems of implementation in this area, in large part because the legal mechanisms which might underpin CSR ('reflexive law') have not yet been effectively developed.

  7. The Hack's law applied to young volcanic basin: the Tahiti case

    Science.gov (United States)

    Ye, F.; Sichoix, L.; Barriot, J.; Serafini, J.

    2010-12-01

    We study the channel morphology over the Tahiti island from the Hack’s law perspective. The Hack’s law is an empirical power relationship between basin drainage area and the length of its main channel. It had also been shown that drainage area becomes more elongate with increasing basin size. For typical continental basins, the exponent value lies between 0.47 for basins larger than 260,000 km2 and 0.7 for those spanning less than 20,720 km2 (Muller, 1973). In Tahiti, we extracted 27 principal basins ranging from 7 km2 to 90 km2 from a Digital Terrain Model of the island with a 5 m-resolution. We demonstrate that the Hack’s law still apply for such small basins (correlation coefficient R2=0.7) with an exponent value being approximately 0.5. It appears that the exponent value is influenced by the local geomorphic condition, and does not follow the previous study results (the exponent value decreases with increasing drainage area.) Our exponent value matches the result found w.r.t. debris-flow basins of China for drainage areas less than 100 km2 (Li et al., 2008). Otherwise, the young volcanic basins of Tahiti do not become longer and narrower with increasing basin size (R2=0.1). Besides, there is no correlation between the basin area and the basin convexity (R2=0). This means that there is no statistical change in basin shape with basin size. We present also the drainage area-slope relationship with respect to sediment or transport-limited processes. Key words: Hack’s law, channel morphology, DTM

  8. How Does Law Matter to Social Movements? A Case Study of Gay Activism in Singapore

    OpenAIRE

    Chua, Lynette Janice

    2011-01-01

    This study is aimed at gaining a better understanding of how people fight for change collectively in societies that, unlike the United States, have less of democratic processes, and fundamental civil-political rights, and, of how law matters to their processes of doing so. It focuses on a particular minority group, gay people, in one particular society - Singapore, an Asian country with shades of authoritarianism - and explored how gay activists make sense of their grievances, strategize and ...

  9. Behavioural sciences in law and policy : a case of scientific imperialism?

    OpenAIRE

    Malecka, Magdalena; LEPENIES, Robert

    2015-01-01

    The paper discusses applications of the behavioural sciences to law and aims at contributing to the contemporary discussions on scientific imperialism. By analysing these applications we demonstrate difficulties with defining scientific imperialism in terms of relations between disciplines. The analysis advanced in the paper critically assesses existing accounts of scientific imperialism and paves the way for a more robust approach to both the definition and evaluation of instances of scienti...

  10. Proper Law: Road to Natural Law%自体法:通向自然法之路径

    Institute of Scientific and Technical Information of China (English)

    谭岳奇

    2001-01-01

    自然法理论作为国际私法上诸多重要理论的法哲学基石,是确立自体法理论在现代国际私法中的地位的依据。自体法与最密切联系原则等诸多范畴相比,自体法应为国际私法中的自然法。%From jurisprudence aspect, many important theories in the history of private international law were based on the theory of natural law. Proper law, compared with the principle of the most significant relationship, belongs to the natural law in private international law.

  11. ABOUT APPLICATION OF MEDIATION IN CRIMINAL CASES (FROM THE EXPERIENCE OF LAW-ENFORCEMENT PRACTICE IN FEDERAL REPUBLIC OF GERMANY

    Directory of Open Access Journals (Sweden)

    L. S. Kravchuk

    2015-01-01

    Full Text Available The matters in the fight against crime through a prism of foreign countries are in the centre of attention of a domestic and foreign criminal law science and lawenforcement practice. The modern science of criminal law has a theoretically reasonable doctrine answering positions and principles about a lawful state, the complete concept of punishment; however, there is an inevitable practice of wide application punishment of custodial sanction which against a steady tendency of growth of registered criminality becomes a sharp social and legal problem. In this sense experience of mediation’s application in criminal cases in court practice of Federal Republic of Germany is interesting as comparable alternative form of conflicts solution which is enough effective. Mediation means development of an extrajudicial decision for victims, a conciliation procedure for all participants of the conflict with assistance of one or several intermediaries who are independent, neutral and external persons carrying out exchange and communications function between the parties, with the purpose of conflict settlement by participants. Mediation gives the opportunity of constructive handling with criminal cases and is a good addition to traditional court practice as it means the co-operative and constructive decision of problems existing between the direct parties and contributes to internal security provision, so a share of relapses after processes of reconciliation of the criminal and a victim is much more low than in comparable cases in traditional criminal procedures. Authors describe short chronology of contemporary history of mediation, legal and organizational bases in realization of reconciliation process between a victim and the criminal being the offer of conflict settlement by means of the third participating parties.

  12. Using litigation to defend women prosecuted for abortion in Mexico: challenging state laws and the implications of recent court judgments.

    Science.gov (United States)

    Paine, Jennifer; Noriega, Regina Tamés; Puga, Alma Luz Beltrán Y

    2014-11-01

    While women in Mexico City can access free, safe and legal abortion during the first trimester, women in other Mexican states face many barriers. To complicate matters, between 2008 and 2009, 16 state constitutions were amended to protect life from conception. While these reforms do not annul existing legal abortion indications, they have created additional obstacles for women. Health providers increasingly report women who seek life-saving care for complications such as haemorrhage to the police, and some cases eventually end up in court. The Grupo de Información en Reproducción Elegida (GIRE) has successfully litigated such cases in state courts, with positive outcomes. However, state courts have mainly focused on procedural issues. The Mexican Supreme Court ruling supporting Mexico City's law has had a positive effect, but a stronger stance is needed. This paper discusses the constitutional framework and jurisprudence regarding abortion in Mexico, and the recent Costa Rica decision of the Inter-American Court of Human Rights. We assert that Mexican states must guarantee women's access to abortion on the legal grounds established in law. We continue to support litigation at the state level to oblige courts to exonerate women prosecuted for illegal abortion. Advocacy should, of course, also address the legislative and executive branches, while working simultaneously to set legal precedents on abortion.

  13. How is a Judicial Decision Made in Parental Religious Disputes? An analysis of determining factors in Dutch and European Court of Human Rights case law

    Directory of Open Access Journals (Sweden)

    Jet Tigchelaar

    2016-07-01

    Full Text Available In the last few decades courts have been confronted with a variety of cases concerning the effects of the religious views and practices of parents on their children. In the Netherlands, family law courts, for example, have had to decide on the choice between secular or religious schooling, on religious rituals like circumcision and baptism, and on the exposure of children to (non-religious practices, when dealing with the contact arrangements. The case law of the European Court of Human Rights shows that family law courts in several other European countries have also had to rule on the impact of parents’ religious practices on their children in the context of parental rights, such as custody and contact rights. In this contribution we investigate the factors used by Dutch judges to assess the best interests of the child in cases on religious disputes between parents. Furthermore, we analyse whether the Dutch case law concerning this topic is in conformity with the case law of the European Court of Human Rights. Therefore, we present which types of factors can be found and in which way these factors are assessed in the case law of the European Court of Human Rights.

  14. Policy Entrepreneurs and the Design of Public Policy: The Case of the National Health Insurance Law in Israel

    Directory of Open Access Journals (Sweden)

    NISSIM COHEN

    2012-07-01

    Full Text Available How do policy entrepreneurs implement in practice the things theory suggests they should do? This article suggests various insightsinto the influence of policy entrepreneurs on the formulation of public policy. Using a broad definition of the concept of policyentrepreneur, the article identifies the main characteristics of entrepreneurial activities, describes various strategies that the policyentrepreneur may employ, and develops a model of successful and effective policy entrepreneurship. Using an analysis of the designof the Israel National Health Law of 1994 as a case study, the article emphasizes the importance of policy entrepreneurs in thepublic policy arena and provides several insights into the conditions for their activity, their motivations and main strategies.

  15. The Limits of Pluralism - Recent Jurisprudence of the European Court of Human Rights with Regard to Minorities: Does the Prohibition of Discrimination Add Anything?

    Directory of Open Access Journals (Sweden)

    Sia Spiliopoulou Åkermark

    2002-10-01

    Full Text Available Since the mid-1990s, the European Court of Human Rights has had before it a number of cases concerning the situation of minorities under Article 14 of the European Convention for the Protection of Human Rights - which aims to secure the enjoyment of rights and freedoms without discrimination inter alia on grounds of association with a national minority. At present, the number of similar cases pending before the Court is growing. Through an examination of cases concerning mainly the nexus between Article 11 and Article 14 as well as Article 8 and Article 14, this article seeks to identify a number of problematic aspects of the jurisprudence of the Court. This, the author argues, includes uncertainty as to when and why the Court chooses to examine Article 14; issues of cumulative violations; issues of evidence; the questionable principle of prevention; issues of indirect discrimination and last, but not least, the potential benefits of the entry into force of Protocol No. 12. To address these problems, the author concludes that there is a need for greater coherency in the positions adopted by the Court with respect to minority issues as well as a need for more legal research.

  16. [Forensic psychologist's considerations about the new law regulation in cases of sexual crimes].

    Science.gov (United States)

    Gierowski, Józef Krzysztof

    2012-01-01

    The article comments, from the perspective of a forensic psychologist, the changes which have been recently provided to the law regulations on sexual crime and the treatment of the sexual crime perpetrators. It appears that the new law regulations follow the right path, because they create the conditions for holistic and complex solutions in the sexual crime treatment matter. Unfortunately they are still rather incomplete and inconsistent. Their practical implementation is difficult because of the very demanding qualification criteria to the psychotherapy of sexual crime perpetrators, the existence of law criteria to the therapy, the narrow frame of the therapy goals and unclear rules of therapy constraint. Moreover, in Poland there is a lack of complex therapy models of sexual perpetrators, we have little experience in this kind of therapy and there is a deficiency of qualified specialists. Finally the relationship between the treatment of this kind of criminals in prison conditions and ambulatory therapy conditions isn't very clearly precise. On the other hand, a lot of improvements have been provided, such as: continuing the treatment after leaving prison, not only pharmacological treatment but also psychotherapy, the system of prevention. Despite of the strong attempts to promote the special role of pharmacological treatment of sexual crime perpetrators (,,chemical castration"), the new solutions promote a complex and interdisciplinary approach to this problem. In this article, the author described the current Polish experience in the therapy of sexual crime perpetrators and listed several rules of preparing the forensic-psychological expertise according to the described problem in context of new legal regulations.

  17. The link between international law and media: case selection in the international criminal court

    OpenAIRE

    Kahveci, Pelin

    2013-01-01

    The case-selection policy of the ICC is questioned by various scholars, criticizing the application of legal criteria defined or condemning the Court’s special interest in Africa. However, no work focused on the role of media coverage over case-selection by the Court. Therefore; this study examines the Court’s use of media as a tool of selection when deciding upon formal investigation cases. In this sense, it proposes that the more coverage in media to the cases, the more likely that the Cour...

  18. The right to die in Canadian legislation, case law and legal doctrine.

    Science.gov (United States)

    Plachta, M

    1994-01-01

    This article discusses moral, social, medical and legal problems pertaining to the so-called 'right to die' from the perspective of Canadian criminal legislation (the Criminal Code), constitutional law (the Charter of Rights and Freedoms) and court rulings. Regarding the latter, the opinions delivered in Nancy B v Hôtel-Dieu de Quebec and Rodriguez v British Columbia (Attorney General) are especially significant. In Rodriguez, the Supreme Court of British Columbia unequivocally rejected the petitioner's submission that the Charter of Rights and Freedoms guarantees the right to die. This judgment was upheld on appeal by both the British Columbia Court of Appeal and the Supreme Court of Canada. In addition, the article addresses the complex problem of legislating the right to die in Canada. Several options are examined, such as professional judgment and advance health care directives including living wills and powers of attorney for health care. In this context, the recommendations adopted by both the Law Reform Commission of Canada and provincial commissions are analysed. Finally, the article discusses the legislation proposed recently in Alberta, Manitoba, Newfoundland, Ontario and Saskatchewan. It seems doubtful, however, whether a nation-wide solution will be found in the near future. PMID:7731350

  19. The Consumer Policy in the Eu Law / Spotrebiteľská Politika V Práve Eú

    Directory of Open Access Journals (Sweden)

    Lazíková Jarmila

    2016-06-01

    Full Text Available Consumer protection is a dominant policy of the EU. Despite this fact, the article 169 of the Treaty on Functioning of the European Union does not enable to adopt the binding legal laws on consumer protection per se. The binding legal laws could be adopted only within the context of other politics and activities on the internal market of the EU. The paper addresses the consumer policy and its status in the EU law by the historical development and legal analysis of the article 169 of the Treaty, secondary law development of consumer protection, jurisprudence, and judicature of the Court of the Justice of the EU.

  20. On Case Teaching in "Nursing and Law"%“护理与法”案例教学探讨

    Institute of Scientific and Technical Information of China (English)

    张盈

    2012-01-01

      The article made a study to explore the teaching effect, influence factors and the existing problems for the application of case teaching method in "Nursing and Law", and make advice for the teaching reform. The study results showed that case teaching can play the role of the complement of teaching, not only improve the learning interest of the students, cultivate the students' critical thinking skills, at the same time it can improve teachers' professional level. But there are also some restricting factors such as it is hard to cover all the teaching content of "Nursing and Law", design time consuming, and the higher requirements of teaching condition.%  案例教学法在“护理与法”教学中能起到教学相长的作用,不仅提高了学生的学习兴趣,培养了学生评判性思维能力,同时有利于提升教师的业务水平,但也存在难以涵盖“护理与法”的所有教学内容,设计费时,对教学条件要求较高等制约因素

  1. Developments of the EU law in network managements in the year 2010; Entwicklungen des Unionsrechts in den Netzwirtschaften im Jahr 2010

    Energy Technology Data Exchange (ETDEWEB)

    Klotz, Robert

    2011-02-15

    The author of the contribution under consideration reports on the main developments of the European Union law in the field of network-dependent sectors of the economy in the year 2010. The contribution points out the actual legislation, decision-making practice and jurisprudence on the EU level. The result is a comprehensive picture of the evolution and actual trends of European Union law in the network industries.

  2. Role Of The Law And Legal Knowledge In The History Of The Domestic State Development

    Directory of Open Access Journals (Sweden)

    Alla V. Kareva

    2014-06-01

    Full Text Available In the present article features of formation and development of the Old Russian, Russian law and jurisprudence and their role in the history of the domestic state are revealed. Author research traditions and bases of the Russian law and sense of justice, which are important for modern Russia, its legal system and statehood: domination of ethical beginnings over legal and collective law over the right of personality. Author carries out analysis of the domestic law formation stages, connected with emergence of outstanding legal monuments ("the Russkaya Pravda", Cathedral code of 1649. Special attention is paid to Peter I's transformations, first of all, in the sphere of law-making and legislation, and also in improvement of legal education in the Russian Empire. The role of Moscow and St. Petersburg Universities within which the main source of legal knowledge were lectures given by the designated professors. Author explains value of the famous reformer M.M. Speransky's versatile activity for the development of Russian legal system, law and legal education, because "the Speransky law school" was directed on preparing teachers of jurisprudence, systematization of Russian legislation, increase of the role of law and legislation in the formation of constitutional state.

  3. Hydrodynamics-based functional forms of activity metabolism: a case for the power-law polynomial function in animal swimming energetics.

    Directory of Open Access Journals (Sweden)

    Anthony Papadopoulos

    Full Text Available The first-degree power-law polynomial function is frequently used to describe activity metabolism for steady swimming animals. This function has been used in hydrodynamics-based metabolic studies to evaluate important parameters of energetic costs, such as the standard metabolic rate and the drag power indices. In theory, however, the power-law polynomial function of any degree greater than one can be used to describe activity metabolism for steady swimming animals. In fact, activity metabolism has been described by the conventional exponential function and the cubic polynomial function, although only the power-law polynomial function models drag power since it conforms to hydrodynamic laws. Consequently, the first-degree power-law polynomial function yields incorrect parameter values of energetic costs if activity metabolism is governed by the power-law polynomial function of any degree greater than one. This issue is important in bioenergetics because correct comparisons of energetic costs among different steady swimming animals cannot be made unless the degree of the power-law polynomial function derives from activity metabolism. In other words, a hydrodynamics-based functional form of activity metabolism is a power-law polynomial function of any degree greater than or equal to one. Therefore, the degree of the power-law polynomial function should be treated as a parameter, not as a constant. This new treatment not only conforms to hydrodynamic laws, but also ensures correct comparisons of energetic costs among different steady swimming animals. Furthermore, the exponential power-law function, which is a new hydrodynamics-based functional form of activity metabolism, is a special case of the power-law polynomial function. Hence, the link between the hydrodynamics of steady swimming and the exponential-based metabolic model is defined.

  4. The Guardian of Societal Order:Adam Smith’s Discourse on Justice and Natural Jurisprudence%社会秩序的护卫者——亚当·斯密论“正义”与“自然法理学”

    Institute of Scientific and Technical Information of China (English)

    康子兴

    2012-01-01

    通过对"德性"以及"人性"的重新阐释,亚当·斯密颠覆了亚里士多德的经典命题,将"人是城邦的动物"改造为"人是社会的动物"。启蒙精神为斯密提供了重要的理论工具,他试图用一种情感主义的人性论和道德哲学来重构整个自然法理学体系,为其提供一个世俗化的理论基础,为国家行为、为立法者提供理论指引。"社会"是斯密整个学说体系的核心和基础,只有理解了"社会"与其自然法理学之间的关系,才能深入理解其政治经济学甚至国家理论的真正意涵。本文所要阐述的,正是"社会"对其自然法理学的意义及其因而呈现出来的结构和特点。%By re-interpreting the content of "virtue" and "human nature", Adam Smith denied Aristotle’s classical proposition that "man is by nature an animal of polis" and redefined it as "man is by nature an animal of society". He attempted to establish the natural jurisprudence system with the Novum Organum, the emotionalist human nature theory and moral philosophy. By doing so, he provided natural jurisprudence with a secular foundation, and the state and legislators with theoretical directions. Society was the core and foundation of his theoretical system. Only having mastered the relation between "society" and its natural jurisprudence could we obtain a deep understanding of its political economy and the true essence of the state theory. The aim of this paper is to explain the significance of "society" to its natural jurisprudence, and in turn, the structure and characteristics of the jurisprudence. In Smith’s natural jurisprudence, the relationship between society and state was reflected by that between "laws of justice" and "laws of police". State should meet the requirement of "natural society", making "laws of police" for governing the historical society, and dealing with its corruption, injustice and conflictions. The discovery of Society leads to

  5. Law without Law

    OpenAIRE

    Sidharth, B. G.

    2007-01-01

    We consider a model for spacetime in which there is an ubiquitous background Dark Energy which is the Zero Point Field. This is further modeled in terms of a Weiner process that leads to a Random or Brownian characterization. Nevertheless we are able to recover meaningful physics, very much in the spirit of Wheeler's Law without Law, that is laws emerging from an underpinning of lawlessness.

  6. School Segregation under Color-Blind Jurisprudence: The Case of North Carolina. Working Paper 16

    Science.gov (United States)

    Clotfelter, Charles T.; Ladd, Helen F.; Vigdor, Jacob L.

    2008-01-01

    Using detailed administrative data for the public K-12 schools of North Carolina, we measure racial segregation in its public schools. With data for the 2005-2006 school year, we update previously published calculations that measure segregation by unevenness in racial enrollment patterns, both between schools and within schools. We find that…

  7. O direito comparado na jurisdição constitucional The comparative law in the constitutional adjudication

    Directory of Open Access Journals (Sweden)

    Gustavo Vitorino Cardoso

    2010-12-01

    Full Text Available Este estudo aborda o crescente uso do direito comparado na racionalidade das decisões dos tribunais constitucionais. Tema extremamente interessante e atual, a aproximação do direito constitucional ao direito comparado é ilustrada a partir de casos julgados em Portugal, Estados Unidos e África do Sul e que receberam atenção especial da doutrina, destacando-se, nomeadamente, os contornos históricos e jurídicos caracterizadores desses ordenamentos jurídicos. O primeiro objetivo perfaz a verificação do alinhamento do Supremo Tribunal Federal à tendência comparativa, o que é feito mediante a análise materialmente direcionada da sua jurisprudência colhida no sítio oficial. A segunda etapa tem como escopo uma explicação possível para o problema intrínseco à interpretação/concretização de regras e princípios constitucionais, lançada na fundamentação de uma decisão com base em elementos apurados em outra ordem jurídica, tarefa essa que é levada a efeito com apoio na caracterização do denominado estado constitucional. Todas as etapas cumprem a função mais geral de indagação acerca do papel que a comparação de direitos tem alcançado no constitucionalismo do presente.This study addresses the growing use of the comparative law perspective in the rationality of decisions at constitutional courts. A much interesting and actual tendency, the correlation between comparative law and constitutional law is revealed by cases decided in Portugal, United States and South Africa, which has gathered great scholarly attention, with special focus in the historical and legal contours of these jurisdictions. The first aim is to examine the alignment of the Brazilian Federal Supreme Court to the comparative trend, which is carried out by jurisprudence analysis of documents available on the official website of the Institution. In addition, it was conceived a possible explanation for the intrinsic problem of the interpretation

  8. Methods of lawmaking of the European Court of Human Rights: Do hard cases make bad law? : A case study

    NARCIS (Netherlands)

    Bierkens, Ilona; Vlieks, Caia

    2015-01-01

    In the spirit of Professor Willem Witteveen and his academic fondness for judicial lawmaking, this article analyses the methods of lawmaking by the European Court of Human Rights in ‘hard cases’. To this end, a case study on the ‘hard’ topics of euthanasia and assisted suicide is conducted in light

  9. First Exploration on Curriculum Reform of Informatization Teaching Process of Health Jurisprudence%《卫生法学》课程信息化教学过程改革初探

    Institute of Scientific and Technical Information of China (English)

    李艳霞

    2013-01-01

    There are many defects in traditional teaching process of Health Jurisprudence, and information-ization is the inevitable result of reforming traditional health law study with the social development. Curriculum reform of informatization teaching process of Health Jurisprudence should embody the following aspects: making teaching preparations by course preparation, configuration and training of teachers, students entrance education, etc.; organizing and implementing teaching by students' autonomous learning, teachers' guidance to students' learning, simulative court teaching, intensive practice teaching, etc.;and evaluating by teaching assessment and e-valuation in the end.%传统《卫生法学》课程教学过程存在诸多缺陷,信息化是卫生改革顺应时代发展对传统卫生法律研究进行变革的必然结果,《卫生法学》课程信息化教学过程改革应从课程授课准备、教师的配置与培训、学生入学教育等方面予以教学准备,从学生自主学习和教师、学生的导学、助学以及模拟法庭教学、集中实践教学等方面组织教学实施,最后以教学考核与评价予以考量。

  10. Law and Politics in Post Independence Indonesia: A Case Study of Religious and Adat Courts

    Directory of Open Access Journals (Sweden)

    Ratno Lukito

    2014-03-01

    Full Text Available This paper will address the development of Indonesian law in the post-independence era. In the following pages, this paper will demonstrate that changes in the country's political climate affected born the Islamic and adat (customary courts,in spire of the inflexibility with which both legal traditions had weathered the political upheavals of the first half of the century. To this end, the place of both adat and religious courts in post-independence Indonesia will be analyzed in light of this political change. Two major avenues of investigation will be discussed. The first explains the debate between "pluralist" and "uniformist" groups regarding legal development in the young Republic of Indonesia, while the second discusses contentions between the so-called "secular nationalists" and "Muslims". The discussion provided in these sections is intended to provide a basis for understanding the legal controversies which unavoidably arose as a result of the shift from a colonial to a narional legal philosophy.Copyright (c 2014 by SDI. All right reserved.DOI: 10.15408/sdi.v6i2.731

  11. A perspective on emerging law, consumer trust and social responsibility in China's food sector: the "bleaching" case study.

    Science.gov (United States)

    Roberts, Michael T

    2011-01-01

    Trust underpins the Chinese social system, and yet it is lacking from a Chinese food system that is riddled with safety disasters and disgruntled consumers. Government and industry play a major role in rehabilitating consumer trust in China. To this end, food safety and quality laws have been constructed to foster this process; however, safety scandals continue even in the face of stricter regulations and increased enforcement. A potential toll to abate food-safety problems and to build trust is the implementation of Corporate Social Responsibility ("CSR"). Mandates by the government promote CSR in enterprise activity, including Article 3 of the 2009 China Food Safety Law. Officials have also recently touted the need for "moral education" of operators in the food industry. Regardless of government activity or whether CSR is employed by food enterprises, it is imperative that the food industry recognizes how critical it is to establish trust with Chinese consumers, who increasingly expect safe, quality food. The case study with pistachios highlights this evolving consumer expectation and the principles of social responsibility in the framework of the relationship between government and industry and consumers, while demonstrating the benefits of doing the right thing for food companies doing business in China. PMID:24505855

  12. A perspective on emerging law, consumer trust and social responsibility in China's food sector: the "bleaching" case study.

    Science.gov (United States)

    Roberts, Michael T

    2011-01-01

    Trust underpins the Chinese social system, and yet it is lacking from a Chinese food system that is riddled with safety disasters and disgruntled consumers. Government and industry play a major role in rehabilitating consumer trust in China. To this end, food safety and quality laws have been constructed to foster this process; however, safety scandals continue even in the face of stricter regulations and increased enforcement. A potential toll to abate food-safety problems and to build trust is the implementation of Corporate Social Responsibility ("CSR"). Mandates by the government promote CSR in enterprise activity, including Article 3 of the 2009 China Food Safety Law. Officials have also recently touted the need for "moral education" of operators in the food industry. Regardless of government activity or whether CSR is employed by food enterprises, it is imperative that the food industry recognizes how critical it is to establish trust with Chinese consumers, who increasingly expect safe, quality food. The case study with pistachios highlights this evolving consumer expectation and the principles of social responsibility in the framework of the relationship between government and industry and consumers, while demonstrating the benefits of doing the right thing for food companies doing business in China.

  13. GUARANTEES SPECIFIC TO A FAIR TRIAL IN CRIMINAL MATTERS. HARMONISATION OF JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Mircea DAMASCHIN

    2010-06-01

    Full Text Available By adopting the European Convention on Human Rights (hereinafter referred to as “the Convention” in 1994, the Romanian State recognised the necessity that any criminal trial should be carried out under fair conditions, in accordance with the requirements of Article 6 of the Convention. In this study, we are going to analyse the requirements of the Convention applying especially to criminal trials, namely those related to the right of the charged person to be informed promptly, in a language which he understands, of the nature and cause of the accusation against him. Moreover, we will take into consideration the obligation of the judicial bodies to offer the charged person the adequate time and facilities for the preparation of his defence. The analysis will be based on the relevant regulations set down in the Convention and the Romanian criminal procedure legislation. Last but not least, it will include a presentation of the jurisprudence relevant to these matters, both of the European Court of Human Rights (hereinafter referred to as “ECHR” and of the Romanian national courts

  14. Religious Music, the Public Schools, and the Establishment Clause: A Review of Federal Case Law

    Science.gov (United States)

    Cranmore, Jeff; Fossey, Richard

    2014-01-01

    Various issues relating to education and religion continue to appear in federal court. One issue that is most relevant to music educators is the use of religious music in school music curriculum. Although no federal guidelines exist as to what is acceptable usage, a number of federal cases have addressed the various issues, from the use of…

  15. Timing of entry to care by newly diagnosed HIV cases before and after the 2010 New York State HIV testing law.

    Science.gov (United States)

    Gordon, Daniel E; Bian, Fuqin; Anderson, Bridget J; Smith, Lou C

    2015-01-01

    Prompt entry to care after HIV diagnosis benefits the infected individual and reduces the likelihood of further transmission of the virus. The New York State HIV Testing Law of 2010 requires diagnosing providers to refer persons newly diagnosed with HIV to follow-up medical care. This study used routinely collected HIV-related laboratory data from the New York State HIV surveillance system to assess whether the fraction of newly diagnosed cases entering care within 90 days of diagnosis increased after the implementation of the law. Laboratory data on 23,302 newly diagnosed cases showed that entry to care within 90 days rose steadily from 72.0% in 2007 to 85.4% in 2012. The rise was observed across all race/ethnic groups, ages, transmission risk groups, sexes, and regions of residence. Logistic regression analyses of entry to care pre-law and post-law, controlling for demographic characteristics, transmission risk, and geographic area, indicate that percentage of newly diagnosed cases entering care within 90 days grew more rapidly in the post-law period. This is consistent with a positive effect of the law on entry to care.

  16. Business Law

    DEFF Research Database (Denmark)

    Föh, Kennet Fischer; Mandøe, Lene; Tinten, Bjarke

    Business Law is a translation of the 2nd edition of Erhvervsjura - videregående uddannelser. It is an educational textbook for the subject of business law. The textbook covers all important topic?s within business law such as the Legal System, Private International Law, Insolvency Law, Contract law......, Instruments of debt and other claims, Sale of Goods and real estate, Charges, mortgages and pledges, Guarantees, Credit agreements, Tort Law, Product liability and Insurance, Company law, Market law, Labour Law, Family Law and Law of Inheritance....

  17. Drawing the Line: Same-sex adoption and the jurisprudence of the ECtHR on the application of the “European consensus” standard under Article 14

    Directory of Open Access Journals (Sweden)

    Junko Nozawa

    2013-07-01

    Full Text Available One of the main criteria that the European Court of Human Rights uses in determining the parameters of the margin of appreciation has been to find a consensus among the state parties to the Convention as to the definition or interpretation of a specific right.  The way the Court has implemented the methodology of finding a "European consensus" of the discriminatory practice of states under Article 14 has been problematic. Firstly, it is unclear when the Court takes into consideration the practice of member states of the European Council. Secondly, it is unclear how it defines the comparative group and the threshold necessary in defining a consensus. This note looks at the application of the Court of this standard in cases concerning same-sex adoption in light of its most recent decision in X. and Others v. Austria (2013. It is argued that the application of the standard in practice has yielded variable jurisprudence, is inconsistently applied, and risks further fragmenting Contracting States' obligations under the Convention. In using the consensus standard as an interpretive comparative tool, the Court should allow a narrow margin of appreciation only where there is substantial consensus on an issue. It is the author's position that its negative iteration, or the notion that a lack of consensus should yield a wide margin, should not be maintained, as this approach risks further deteriorating the protection of fundamental rights.

  18. Staying the return of aliens from Europe through interim measures: the case-law of the European Commission and the European Court of Human Rights

    OpenAIRE

    Burbano Herrera, Clara; Haeck, Yves

    2011-01-01

    The Strasbourg case-law demonstrates a clear tendency to protect aliens through interim measures in case of imminent deportation. Usually but not uniquely those persons claim(ed) before the supervisory organs to be in a situation of extreme gravity in case of forcible return to their country of origin because they can be subject to the death penalty, life imprisonment, persecution for their political activities, deprived of medicine/adequate medical treatment. This contribution explores which...

  19. Economic expansion of the European renewable energy market in case of European Union law

    Directory of Open Access Journals (Sweden)

    Bilotskiy Sergiy Dmitrovich

    2014-12-01

    Full Text Available The aim of the article.The paper deals with current trends of the global energy market, signs of a crisis which determine the appearance of the market of renewable energy are revealed. Also comparative description of Ukrainian and European Renewable Energy Markets attractiveness is conducted, impact factors of state policy change in Energy Regulation of the European Union, in particular the development of the renewable energy sources, are analysed. The results of the analysis. Under the conditions of world economic globalization and the growing problem of energy crisis, the role of renewable energy is actualizing for finding in the growing demand of energy, which leads to the formation of a new market in the world economic system – renewable energy market. The initial phase of the market is characterized by the absence of intense competitive environment, the uncertainty of the major players in the market and unallotted market shares, what requires that Ukrainian producers of renewable energy can demonstrate the level of competitiveness in the international market. At the same time, for successfully entrance to the EU market it is needed depth study of legal aspects of economical activity of Ukrainian enterprises in the international market. Comparative analysis of the legal framework of Ukraine and the EU in the renewable energies industry led to positive conclusions about the attractiveness of the European market and let to identify the characteristics of the European Union. Conclusions and directions of further researches. Therefore, the construction of an entry strategy on the international market should pay great attention to aspects of international law to predict the political and legal risks of foreign market. The strategy of economic expansion is most effective in the present context of globalization of the world economy and can provide a quick entry to Ukrainian companies to the EU market and take their niche in it. In addition

  20. [Causation in the court: the complex case of malignant mesothelioma].

    Science.gov (United States)

    Lageard, Giovanni

    2011-01-01

    The aim of this paper is to carry out an analysis of the legal evolution in Italy of the assessment of causation i.e. cause and effect, in oncological diseases, a question taken into consideration by the High Court almost exclusively with reference to pleural mesothelioma. The most debated question when defining the causal association between asbestos exposure and mesothelioma is the possible role that any multiple potentially causative exposures could assume in the induction and development of the disease, and in particular the role of any asbestos exposure over the successive employment periods. Indeed, this is a subject on which, to date, no agreement has yet been reached in scientific doctrine: these divergences bear important practical significance from a legal point of view, since sustaining one thesis or another may constitute determining factors when ascertaining responsibility for individuals who, in the past, had decisional statuses in the workplace. Jurisprudence in the High Court took on an oscillating position on this question as from the early 2000s, which was divided into those who sustained the thesis of the relevance of any asbestos exposure over the successive employment periods and those who were of a different opinion, i.e. only the first exposure period has relevant causative effect. The point under discussion concerns, in particular, the adequacy of a probabilistic law only governing such a question. An important turning point was made in the year 2010 when two sentences were announced in the High Court, reiterating, in strict compliance with the principles affirmed by the United Sections in 2002, that a judge cannot, and must not, be satisfied with a general causation, but must rather reach a judgment on the basis of an individual causation. In particular, not only did the second of these two sentences recognise the multifactorial nature of mesothelioma, something which had almost always been denied in jurisprudence in the past, but it also

  1. The figure of constitutional law of the "Integrated State": the case of the Grand Duchy of Luxembourg

    OpenAIRE

    Gerkrath, Jörg

    2014-01-01

    EU Member State status – Member statehood – The idea of an “Integrated State” – Impact of EU membership on the concepts and substance of national constitutional law – Europeanization of member state’s constitutional law – European constitutional law understood as Europeanized national constitutional law – European functions of constitutional organs – How to protect fundamental rights in a European area characterized by the overlaying of legal sources – The concept of “higher law” within the n...

  2. ADMITTING GUILT IN COURT CASE IN ACCORDANCE WITH NEW LEGISLATIVE CHANGES

    Directory of Open Access Journals (Sweden)

    Simona TACHE

    2011-08-01

    Full Text Available Entry into force of the law no.202/2010 regarding some measures to speed up the trial processes already raises some problems of interpretation especially concerning cases that are pending. Such a situation was inevitable since the transitional provisions could not cover all situations arising in practice, and the law mentioned above create some completely new institutions in our criminal law. But I believe that for the new institution of admitting guilt in court case, would be required to adopt transitional rules necessary to eliminate the controverses that arise and will arise in practice. As any new institution, admitting guilt in court case will require a certain period of time untill crystallize an unitary practice field, even more because the text contains some vague expressions. Unfortunately, the courts have no benefit yet of a fast and efficient mechanism for unifying the jurisprudence, and this fact will probably affect also the solutions that will be taken by the courts in this matter.

  3. The pursuit of the rule of law within a pluri-legal environment: Female circumcision—a case study

    NARCIS (Netherlands)

    B.N. Gibson

    2014-01-01

    In nations where state law is in conflict with traditional or customary law, significant issues can arise regarding the implementation of and adherence to national laws. A thorough understanding of this phenomenon within the context of legal pluralism is likely to reduce some of this conflict and pr

  4. The Conservatism Structure of Rehnquist Habeas Corpus Jurisprudence:Criminal Procedural Cases Research Focusing on Exhausted State Law Remedies Doctrine%伦奎斯特人身保护法律思想的保守主义构造:以穷尽州法救济原则为中心的刑事判例研究

    Institute of Scientific and Technical Information of China (English)

    谢杰; Andrew Clayton

    2007-01-01

    美国联邦法院人身保护是对州法院刑事被告提供的基本性申诉权利.伦奎斯特在人身保护法律制度的发展过程中起到了重要作用.前首席大法官坚持人身保护的保守主义法律路线,严格把握人身保护判例系统中的穷尽州法救济原则,强调社会稳定在犯罪狂潮中举步维艰,必须积极发挥各州法院审理刑事案件的地方性优势,防止联邦法院越俎代庖、顾此失彼.

  5. The right to health of prisoners in international human rights law.

    Science.gov (United States)

    Lines, Rick

    2008-01-01

    This paper explores the health rights of prisoners as defined in international law, and the mechanisms that have been used to ensure the rights of persons in detention to realise the highest attainable standard of health. It examines this right as articulated within United Nations and regional human rights treaties, non-binding or so-called soft law instruments from international organisations and the jurisprudence of international human rights bodies. It explores the use of economic, social and cultural rights mechanisms, and those within civil and political rights, as they engage the right to health of prisoners, and identifies the minimum legal obligations of governments in order to remain compliant with human rights norms as defined within the international case law. In addressing these issues, this article adopts a holistic approach to the definition of the highest attainable standard of health. This includes a consideration of adequate standards of general medical care, including preventative health and mental health services. It also examines the question of environmental health, and those poor conditions of detention that may exacerbate health decline, disease transmission, mental illness or death. The paper examines the approach to prison health of the United Nations human rights system and its various monitoring bodies, as well as the regional human rights systems in Europe, Africa and the Americas. Based upon this analysis, the paper draws conclusions on the current fulfilment of the right to health of prisoners on an international scale, and proposes expanded mechanisms under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment to monitor and promote the health rights of prisoners at the international and domestic levels.

  6. The right to health of prisoners in international human rights law.

    Science.gov (United States)

    Lines, Rick

    2008-01-01

    This paper explores the health rights of prisoners as defined in international law, and the mechanisms that have been used to ensure the rights of persons in detention to realise the highest attainable standard of health. It examines this right as articulated within United Nations and regional human rights treaties, non-binding or so-called soft law instruments from international organisations and the jurisprudence of international human rights bodies. It explores the use of economic, social and cultural rights mechanisms, and those within civil and political rights, as they engage the right to health of prisoners, and identifies the minimum legal obligations of governments in order to remain compliant with human rights norms as defined within the international case law. In addressing these issues, this article adopts a holistic approach to the definition of the highest attainable standard of health. This includes a consideration of adequate standards of general medical care, including preventative health and mental health services. It also examines the question of environmental health, and those poor conditions of detention that may exacerbate health decline, disease transmission, mental illness or death. The paper examines the approach to prison health of the United Nations human rights system and its various monitoring bodies, as well as the regional human rights systems in Europe, Africa and the Americas. Based upon this analysis, the paper draws conclusions on the current fulfilment of the right to health of prisoners on an international scale, and proposes expanded mechanisms under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment to monitor and promote the health rights of prisoners at the international and domestic levels. PMID:18382849

  7. Student Disability Claims in the UK and USA: Does the Jurisprudence Converge?

    Science.gov (United States)

    Davies, Mark; Lee, Barbara A.

    2008-01-01

    Laws in the UK and the USA protect college students with disabilities from discrimination. The laws of both nations are complex and require institutions of higher education to accommodate qualified students. This article examines the requirements of both nations' laws with respect to the kinds of inquiries that may be made of students with…

  8. [With the fourth sentence of the First Chamber on wrongful birth: is it possible to start talking about "jurisprudence"?].

    Science.gov (United States)

    de Angel Yágüez, Ricardo

    2005-01-01

    Chamber number 1 of the Spanish Supreme Court of Justice has announced its fourth wrongful birth case decision dated December 18, 2003. The issue is whether we can state that with these four rulings there is a genuine law of precedent, that is, reiterated doctrine of the Supreme Court of Justice on this matter (Article 1.6 of the Civil Code).

  9. Universal Jurisdiction between Unity and Fragmentation of International Criminal Law

    Directory of Open Access Journals (Sweden)

    Pasculli Maria Antonella

    2011-04-01

    over other international or transnational crimes, which would be a sign of real fragmentation between modern ICL (the core crimes and transnational ICL (crimes such as terrorism, piracy, money counterfeiting, etc..In section 2, on the basis of a few selected case studies, I will ask whether the exercise of UJ has the tendency to lead to fragmented jurisprudence on substantive ICL. I will try to answer: Do States in their implementation of legislation and subsequently the national courts use the same crime definitions as the ICC, or are they generally different and tailored to domestic circumstances? And those questions arise even more strongly for modes of liability? If the latter is the case, to what extent is the jurisprudence fragmented – is it on minor points, or do we see great divergences in case law on crime definitions?Finally, I will make some final observations on the utility of UJ and whether in general it will lead to further fragmentation within ICL, with my personal interpretation of ideal UJ.Dans cet article, la question que nous allons aborder est celle de la juridiction universelle, de manière à comprendre si elle conduira à l’unité ou à la fragmentation du droit pénal international. Sur la base d’un bref aperçu de la littérature sur le sujet, on évaluera le pour et le contre de l’implémentation du principe de juridiction universelle. Après quoi, afin de porter notre attention sur l’efficacité et la légitimité du principe de juridiction universelle, défini aussi comme une forme de juridiction controversée, on l’examinera dans les pays qui ont légiféré différemment en la matière.Dans la première partie du texte, on donnera un aperçu des Etats qui, par respect pour la ratification du Statut de Rome, ont résolu le problème de l’universalité de la juridiction en droit pénal selon différentes formes et modalités. Dans la deuxième partie, à travers quelques cas de jurisprudence, on essayera de répondre à la

  10. THE STATIC AND DYNAMIC ASPECTS OF ROMAN LAW AS PORTRAYED IN THE SOURCES OF LAW

    Directory of Open Access Journals (Sweden)

    Alina Monica AXENTE

    2015-07-01

    Full Text Available The dynamics of the private Roman law sources had been influenced by the conjoined action of three factors: the Romans’ conservative mentality, their practicality and the incorporation of the concepts of equity and good faith into their legal system. By virtue of the Romans’ conservative mentality, their private law functioned according to less than thirty laws. Towards the end of the Republic, against the background of the economic revolution that gave variety to social relations and enhanced their complexity, many of the provisions of the old laws, including those laid down under the Law of the Twelve Tables, became inapplicable. Faced with these challenges and animated by their practicality, the Romans realized that appropriate measures had to be taken so as to strike a balance between the provisions of the law and the new demands of the ever-changing Roman social life. To this end, they started from the conviction that trade economy could not be strengthened and further develop without an effective legal ordinance. In order to counterbalance the discrepancy between the laws and the development of the social environment, the Romans resorted to procedural means and extensive research upon which they elaborated in accordance with the principles of equity and good faith. Consequently, towards the end of the Republic, the Praetor’s Edict and the jurisprudence functioned as a legal filter with a view to striking a balance between the provisions of the old laws and the new social atmosphere. Throughout this stage in the evolution of private Roman law sources, the law embodied the static aspect, whereas the Praetor’s Edict represented its dynamic counterpart. Therefore, by means of interweaving tradition with innovation, the Romans managed to modernize the private law under the impression that the old laws were still in effect.

  11. Båth's law and its relation to the tectonic environment: A case study for earthquakes in Mexico

    Science.gov (United States)

    Rodríguez-Pérez, Q.; Zúñiga, F. R.

    2016-09-01

    We studied 66 mainshocks and their largest aftershocks in the Mexican subduction zone and in the Gulf of California with magnitudes in the range of 5.2 aftershock sequences, we analyze the physics of the mainshock-largest aftershock relationship (Båth's law). The partitioning of energy during a mainshock-aftershock sequence shows that about 96-97% of the energy dissipated in a sequence is associated with the mainshock and the rest is due to aftershocks. Our results for radiated seismic energy and energy-to-moment ratio are partially in agreement with worldwide studies supporting the observation of mechanism dependence of radiated seismic energy. The statistical tests indicate that the only significant difference is for shallow thrust and strike-slip events for these parameters. The statistical comparison of stress drop of shallow thrust versus that of inslab events shows a strongly significant difference with a confidence better than 99%. The comparison of stress drop of shallow thrust events with that of strike-slip events, also indicates a strongly significant difference. We see no dependence of stress drop with magnitude, which is strong evidence of earthquake self-similarity. We do not observe a systematic depth dependence of stress drop. The results also reveal differences in the earthquake rupture among the events. The magnitude difference between the mainshock and the largest aftershock for inslab events is larger than interplate and strike-slip events suggesting focal mechanism dependence of Båth's law. For the case of this parameter, only that for inslab and strike-slip events present a significant difference with 95% confidence.

  12. Application towards the Concept of Rechtsvinding and Rechtsschepping by the Judges in Deciding a Case

    Directory of Open Access Journals (Sweden)

    Harifin A. Tumpa

    2015-08-01

    Full Text Available The judge may not refuse to examine and to decide a case which has been submitted to the court despite having unclear or non-existent legal pretext. The judge are expected to be able to explore values and sense of justice that grows and embodies the community as the living law. The concept of justice here is not the outcome by the human intellectualism, but rather from his/her own spirit. A justice could not exist or be born from a mere theory, because justice is naturally born from the deepest conscience of a judge who is also a human being. A person’s conscience can not come in sudden, but was born through the process, practice or habit. Either legal finding (Rechtsvinding or the creation of law (rechtsschepping should be used in providing justice for litigants as follows: First, in absence of the relevant rules within the existing legislation. Second, regulated by the law but insufficiently clear and contain multi-interpretations. Third, regulated by the law but no longer meet the public sense of justice (out of date. Fourth, based on a jurisprudence or an expert opinion.

  13. Some international law aspects of the Bhopal disaster.

    Science.gov (United States)

    Tyagi, Y K; Rosencranz, A

    1988-01-01

    This article explores certain international law aspects of the Bhopal disaster, namely the principles and rules of international law establishing international accountability for environmental damage; the criteria for determining the liability of the Union Carbide Company (U. S. A.) for the Bhopal disaster; the criteria for determining compensation; and the international remedies available to the Indian government in the event that Bhopal victims fail to get justice within the Indian court system. The article discusses two applicable sets of proposed international standards--the U. N. Draft Code of Conduct on Transnational Corporations, and the U. N. International Law Commission's Draft on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law. The scattered 'hard' and 'soft' jurisprudence of international environmental law establishes liability and accountability for environmental hazards. It makes both state and non-state entities liable to pay compensation to the victims of environmental pollution. This jurisprudence, in addition to domestic law analogies, can influence Indian courts in determining the amount of damages payable to the victims of the Bhopal disaster. The authors conclude that the Bhopal disaster has demonstrated that enforceable international standards are clearly and urgently needed for hazardous industries, especially those operating in developing countries. Such standards would eliminate, or at least narrow, the gap between standards prevailing in the developed countries and those in the Third World. Even without enforcement, international standards could provide norms for measuring the performance of individual companies engaged in hazardous activities such as the manufacture of MIC at Bhopal. PMID:3059509

  14. The Nagoya Protocol and Customary Law: The Paradox of Narratives in the Law

    Directory of Open Access Journals (Sweden)

    Saskia Vermeylen

    2013-09-01

    Full Text Available The issue of protecting traditional knowledge and genetic resources is a textbook example of a legal problem in a world of hybrid legal spaces where a single problem, act or actor is regulated by multiple legal regimes. Unmistakingly, the Nagoya Protocol deserves credit for formally recognising community protocols and customary laws but this article argues that this recognition is not the end of the struggle for indigenous peoples to gain rights over their land and culture. Drawing parallels between access and benefit sharing agreements and native title claims allows for identification of the problems that can arise when Western jurisprudence translates customary laws cross-culturally. The challenges that indigenous peoples are facing in native title claims can show how Western law interprets traditional law and customs and can be used as a benchmark to anticipate the problems indigenous peoples and local communities will encounter when Article 12.1 of the Nagoya Protocol will be applied on the ground. From a theoretical point of view, this article argues that the exclusion or misinterpretation of customary law in Western courts is intrinsic to their legal processes and it draws upon the work of Margaret Davies to show that the psycho-analytical distinction between foreclosure and repression can offer a useful lens to further analyse the relationship between Euro-American and indigenous law within the context of the Nagoya Protocol.

  15. Has the sanctity of life law 'gone too far'?: analysis of the sanctity of life doctrine and English case law shows that the sanctity of life law has not 'gone too far'.

    Science.gov (United States)

    Rabiu, Abdul-Rasheed; Sugand, Kapil

    2014-02-22

    The medical profession consistently strives to uphold patient empowerment, equality and safety. It is ironic that now, at a time where advances in technology and knowledge have given us an increased capacity to preserve and prolong life, we find ourselves increasingly asking questions about the value of the lives we are saving. A recent editorial by Professor Raanan Gillon questions the emphasis that English law places on the sanctity of life doctrine. In what was described by Reverend Nick Donnelly as a "manifesto for killing patients", Professor Gillon argues that the sanctity of life law has gone too far because of its disregard for distributive justice and an incompetent person's previously declared autonomy. This review begins by outlining the stance of the sanctity of life doctrine on decisions about administering, withholding and withdrawing life-prolonging treatment. Using this as a foundation for a rebuttal, a proposal is made that Professor Gillon's assertions do not take the following into account:1) A sanctity of life law does not exist since English Common Law infringes the sanctity doctrine by tolerating quality of life judgements and a doctor's intention to hasten death when withdrawing life-prolonging treatment.2) Even if a true sanctity of life law did exist:a) The sanctity of life doctrine allows for resource considerations in the wider analysis of benefits and burdens.b) The sanctity of life doctrine yields to a competent person's autonomous decision.This review attempts to demonstrate that at present, and with the legal precedent that restricts it, a sanctity of life law cannot go too far.

  16. The key indicators of transboundary water apportionment based on international laws and cases

    Institute of Scientific and Technical Information of China (English)

    FENG Yan; HE Daming; LI Yungang

    2013-01-01

    Transboundary water,more competitive utilization and uncertain availability under the globalization trend,the issue of its apportionment which directly impacts national benefits of each riparian state is becoming one of the important topics in the world.Water is scarce in China,the most important upstream state in Asia,and this task has to be thought over in the coming future.Based on “International Freshwater Treaties Database” (1820-2007) by Oregon State University,and publications and reports on transboundary water utilization and management since 1999,28 indicators of water apportionment adopted in 49 international treaties and cases in 1864-2002 are divided into 6 types,the spatial and temporal characteristics of the adopted indicators are analyzed in order to find the key indicator(s) of transboundary water apportionment.The major results include:the major adopted indicators,have significant differences among 5 regions/continents,the indicators at rank first and second place in the developed region (North America and Europe) according to the adopted times are “keeping minimum water flow” and “mean annual runoff”,but in the developing region (Asia,Africa and South America),the ranking order of the above two indicators is reversed; the major adopted indicators in the watersheds with insufficient water are “mean annual runoff”and “keeping minimum water flow”,the ones in the watersheds with sufficient water are “keeping minimum water flow” and “maximum water intake”; the international treaties signed from the first phase to the fourth phase,the developing process shows a progress of “fewer-increasing a lot-decreasing rapidly-equation basically”,the regional distribution of the treaties shifts mainly from the developed region to the developing one,especially to Asia and Africa; the major adopted indicators shifts from “keeping minimum water flow” and “mean annual runoff” in 1864-1945,to “keeping minimum water flow” and

  17. Rebels without a Cause? Civil disobedience, Conscientious Objection and the Art of Argumentation in the Case Law of the European Court of Human Rights

    OpenAIRE

    Kati Nieminen

    2015-01-01

    Civil disobedience is often seen as a political statement whilst conscientious objection is understood as a private matter. This article discusses real-life acts of disobedience in the case law of the European Court of Human Rights. The emphasis is on the argumentative strategies by which the potential for profound social change can be neutralised in legal argumentation. The cases discussed here concentrate on Turkey and represent acts of conscientious objection and civil disobedience. The ma...

  18. International commercial Arbitration and the challenge of mandatory rules of law: the case of arbitration in antitrust claims

    OpenAIRE

    Seyed Mohammad Tabatabaei Nejad

    2015-01-01

    For decades, the approach of legal systems towards private arbitration in competition law has been characterized by a certain mistrust or suspicion. Initially, this attitude may somehow have been linked to the uncertainty as to the arbitrability of competition law issues, in view of the fact that, in competition law matters generally, public interests are heavily at stake. In fact arbitration is a mechanism for pursuing a balance between the conflicts of parties’ demands. However during the t...

  19. Environmental law

    International Nuclear Information System (INIS)

    In section I 'Basic principles' the following topics are considered: Constitutional-legal aspects of environmental protection, e.g. nuclear hazards and the remaining risk; European environmental law; international environmental law; administrative law, private law and criminal law relating to the environment; basic principles of environmental law, the instruments of public environmental law. Section II 'Special areas of law' is concerned with the law on water and waste, prevention of air pollution, nature conservation and care of the countryside. Legal decisions and literature up to June 1988 have been taken into consideration. (orig./RST)

  20. 刑法学实务案例教学方式探析%The Application of Case Teaching Method in the Science of Criminal Law

    Institute of Scientific and Technical Information of China (English)

    孟庆华; 王法

    2014-01-01

    Criminal cases should be considered in the selection of typical cases and criminal law practice ,major criminal cases should keep pace with the times and selecting the case should be moderate difficulty and other factors .The undergraduate teaching of criminal law should focus on criminal law theory study ,in order to make the theory of criminal law is more easily accepted by students ,it is necessary to complement by further explanation .Graduate teaching of criminal law without copying USA “case teaching method” and the German “into” teaching method ,no need to restart to explore“complementary teaching method teaching method” and other new , as long as we adhere to the application and improvement of “three three” teaching mode .%刑法学实务案例教学应选择较为典型与重大的刑法实务案例,刑法实务案例应与时俱进,所选案例应当难易适中。本科刑法学教学应把重点放在刑法理论的学习上,而为了使刑法理论更易被学生所接受,就有必要辅之以适当的案例作进一步说明、阐述。研究生刑法学教学既无需照搬美国的“判例教学法”与德国的“归入法”教学方式,也无需重新去探讨“互补式教学法”等新的教学方式,只要进一步坚持适用与完善“三三制”教学方式即可。

  1. On the Intersectoriality of the“Law” in Administration by Law%论依法行政之“法”的跨部门性

    Institute of Scientific and Technical Information of China (English)

    柳砚涛; 刘海霞

    2015-01-01

    依法行政之“法”不限于行政法,也包括其他部门法,这主要受制于各部门法在原则、理念等“求同”领域的相同性和相通性,以及行政事务的广泛性、法源共享、行政案件的复杂性等因素。其他部门法作为行政依据必须符合行政法无特别规定、蕴含一般法理、不为行政事务的本质或行政法理所排斥等基本条件。其在依法行政中的功能主要包括依据、依照、适用、参照、法理上的参考等。行政法应加紧构建与其他部门法之间的共享、共用、共建、互补、存异等关系形式。%The“law”in the administration by law includes not only the administrative law ,but also other department laws ,which is mainly influenced by the following factors ,the resemblance and interconnection of department laws in the field of “seeking common ground” as to principles and ideas ,the extensiveness of administrative affairs ,the sharing of sources of law and the complexity of administrative cases ,etc .Other department laws must conform to conditions to be the bases for administration w hich are no special provisions in the administrative law ,implying the common legal principles in other department law s and not rejected by the administrative affairs’ nature or the administrative jurisprudence . Functions of the “law” in administration of law mainly include“according” , “basis” , “application” , “reference” , and “reference in jurisprudence” . T he administrative law shall speed up establishing such relations with other department laws as sharing , common application ,co‐construction ,complementation and reserving differences ,etc .

  2. Between Name and Reality:the Common Law Statutes%名实之间:英美法系的“制定法”

    Institute of Scientific and Technical Information of China (English)

    姚俊廷

    2015-01-01

    不同语境下的制定法,旨趣迥异,无法简单类比或等同。英美法系的制定法低调而谦抑。从表面上看,制定法优先于判例法。它可以对法律内容作全面而详尽规定,为新类型案件提供制定法答案,明文排除非制定法化的罪名,改变或推翻既有判例法,规定法律解释方式,限制违背立法意图的判例法的生成。而事实上,这些制定法的内容源于判例法,制定法的解释会再次追溯至原初的判例,制定法的优先并不排除判例法的适用,制定法的适用范围可能被判例法改变,而且制定法常常使用在判例法中有确切含义的概念。英美法系的制定法少有或没有任何“建构”规则的企图。因而,不管制定法在数量或趋势上是否上升,英美法系的判例法仍稳固地居于主导地位。自然演进的判例法传统和文化,始终是其挥之不去的最鲜明的底色。%The statute under different contexts ,value and idea can not simply analog or equivalent .The common law statutes always exhibits low -key and humble attitude .On the surface ,the statute takes pre‐cedence over case law .It establishes a comprehensive and detailed legal content ,provides answers to new types of cases ,exclude non-statutory law of the charges expressly ,change or overthrow the existing case law ,formulate the way of legal interpretation ,and restrict the generation of case law that contrary to the legislative intent .In fact ,the contents of these statutes stems from the case law .Statutory interpretation will be retroactive again to the original jurisprudence .Priority statute does not preclude the application of case law .The scope of the statute may be changed by case law ,And the statute often use the exact mean‐ing of the concept of the case law .Common law developed little or no attempts to construct the rules . Therefore ,no matter whether the rise in the number of law or trend ,the case

  3. PRINCIPLE OF PROPORTIONALITY, CRITERION OF LEGITIMACY IN THE PUBLIC LAW

    Directory of Open Access Journals (Sweden)

    MARIUS ANDREESCU

    2011-04-01

    Full Text Available A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state’s institutions. The legal behavior of the state’s institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen. The application and nonobservance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state’s functions assumes the discretionary powers with which the states authorities are invested, or otherwise said the ‘right of appreciation” of the authorities regarding the moment of adopting the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the state de jure. In this study we propose to analyze the concept of discretionary power, respectively the power excess, having as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time we would like to identify the most important criterions that will allow the user, regardless that he is or not an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. Within this context, we appreciate that the principle of proportionality represents such a criterion. The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjusting the measures ordered by the state’s authorities to the situation in fact, respectively to the purpose for which they have been conceived. In our study we choose theoretical and jurisprudence arguments according to which the principle of proportionality can procedurally be determined and used to delimit the discretionary power and

  4. PRINCIPLE OF PROPORTIONALITY, CRITERION OF LEGITIMACY IN THE PUBLIC LAW

    Directory of Open Access Journals (Sweden)

    Marius ANDREESCU

    2011-08-01

    Full Text Available A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state’s institutions. The legal behavior of the state’s institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen. The application and nonobservance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state’s functions assumes the discretionary powers with which the states authorities are invested, or otherwise said the ‘right of appreciation” of the authorities regarding the moment of adopting the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the state de jure. In this study we propose to analyze the concept of discretionary power, respectively the power excess, having as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time we would like to identify the most important criterions that will allow the user, regardless that he is or not an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. Within this context, we appreciate that the principle of proportionality represents such a criterion. The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjusting the measures ordered by the state’s authorities to the situation in fact, respectively to the purpose for which they have been conceived. In our study we choose theoretical and jurisprudence arguments according to which the principle of proportionality can procedurally be determined and used to delimit the discretionary power and

  5. Criminal Law

    DEFF Research Database (Denmark)

    Langsted, Lars Bo; Garde, Peter; Greve, Vagn

    <> book contains a thorough description of Danish substantive criminal law, criminal procedure and execution of sanctions. The book was originally published as a monograph in the International Encyclopaedia of Laws/Criminal Law....... book contains a thorough description of Danish substantive criminal law, criminal procedure and execution of sanctions. The book was originally published as a monograph in the International Encyclopaedia of Laws/Criminal Law....

  6. Islamic Law

    Directory of Open Access Journals (Sweden)

    Doranda Maracineanu

    2009-06-01

    Full Text Available The law system of a State represents the body of rules passed or recognized by that State inorder to regulate the social relationships, rules that must be freely obeyed by their recipients, otherwisethe State intervening with its coercive power. Throughout the development of the society, pedants havebeen particularly interested in the issue of law systems, each supporting various classifications; theclassification that has remained is the one distinguishing between the Anglo-Saxon, the Roman-German,the religious and respectively the communist law systems. The third main international law system is theMuslim one, founded on the Muslim religion – the Islam. The Islam promotes the idea that Allah createdthe law and therefore it must be preserved and observed as such. Etymologically, the Arabian word“Islam” means “to be wanted, to obey” implying the fact that this law system promotes total andunconditioned submission to Allah. The Islamic law is not built on somebody of laws or leading cases,but has as source. The Islam is meant as a universal religion, the Koran promoting the idea of the unityof mankind; thus, one of the precepts in the Koran asserts that “all men are equal (…, there is nodifference between a white man and a black man, between one who is Arabian and one who is not,except for the measure in which they fear God.” The Koran is founded mainly on the Talmud, Hebrewsource of inspiration, and only on very few Christian sources. The Islam does not forward ideas whichcannot be materialized; on the contrary its ideas are purely practical, easy to be observed by the commonman, ideas subordinated to the principle of monotheism. The uncertainties and gaps of the Koran, whichhave been felt along the years, imposed the need for another set of rules, meant to supplement it – that isSunna. Sunna represents a body of laws and, consequently, the second source of the Koran. Sunnanarrates the life of the prophet Mohamed, the model to

  7. Chinese Criminal Law and Its Orientation Influenced by Differences of Civil Law System and Case Law System%两大法系刑法学之差异对中国的影响及中国刑法学的发展取向

    Institute of Scientific and Technical Information of China (English)

    杨兴培; 郑旭江

    2014-01-01

    The theory and practice of Chinese criminal law have been and will be affected by criminal law of civil law system and case law system,whose ideological differences especially have the deepest influences upon Chinese criminal law with different manifestations. Accordingly,during the period of building up the theory of Chinese criminal law,how to choose from and emphasize on civil law system and case law system with learning from essences and absorbing the nutrition becomes one inevitable topic of our time. Nowadays,the values of protecting human rights,sticking to procedure and respecting pragmatism of case law system especially American criminal law are worthy to be learned from and focused on by Chinese,who are admiring specific skills of German and Japanese criminal law too much. Only by this way can we avoid obscurity and prejudice of our theory. Rediscovering and using traditional resources on rule of law are beneficial to update and reconstruct ideology of Chinese criminal law,theory of criminal law and skills of criminal law.%中国刑法学的理论和实践已经受到并将继续受到大陆法系和英美法系刑法学的影响,两大法系的差异特别是理念的差异对中国的影响至为深刻但却有不同的表现,由此出发我们在创建中国自身刑法学理论的过程中又将如何有所选择、有所侧重地借鉴和吸取两大法系的精髓和营养成分,应当是中国刑法学无法回避的时代命题。在今天,英美法系特别是美国刑法学保障人权、坚守程序、推崇实用的刑法理念值得已显过度推崇德日刑法学的中国学界的关注和借鉴,只有这样才有可能避免“曲高和寡”和“偏信则暗”的理论危机,而重新发掘和吸取法治的“本土资源”,也可以助推实现中国刑法学理念、刑法理论和刑法运用方法的更新和重构。

  8. Through the Lens of Therapeutic Jurisprudence: The Relationship between Empowerment in the Court System and Well-Being for Intimate Partner Violence Victims

    Science.gov (United States)

    Bennett Cattaneo, Lauren; Goodman, Lisa A.

    2010-01-01

    Research has established the connection between intimate partner violence victims' empowering experiences in the court system and their satisfaction with the process, but not between these experiences and victims' broader wellbeing, a link suggested by the framework of therapeutic jurisprudence. This study investigated the relationship between…

  9. A study of the science of jurisprudence%论刑名之学

    Institute of Scientific and Technical Information of China (English)

    祝捷

    2014-01-01

    本文以汉魏间“刑名”之学的产生、发展,及其对于中古哲学与文化的深刻影响为核心进行了整体讨论。“刑名”之学在汉末魏初成为众多学者的思想共识,其在哲学理念上以严密的语言逻辑、准确的名号界定、完善的制度建设为思想核心,成了当时儒家、道家、法家等各方人士的共同思想倾向;其哲学认识论在于:人的终极认识能力是存疑的;因此,人在认识上应以现实事务为重;人在现实事务的认识与处理过程中应当注重逻辑处理与制度安排。这种哲学理念上的怀疑、批判、思考、创新与整合,促使了中华中古哲学理念在更深层面上的“百家争鸣”。这种重新整合促使中古哲学与思想文化在上古哲理核心的基础上,通过“务实”(儒学刑名学,注重政治制度和社会伦理建设)与“务虚”(玄学,注重个人与家族自由及社会文化建设)这两种理念,使得中国哲学与文化得到进一步发展。这种发展趋向又促使佛教与道教在中古哲学发展过程中,进一步在认识论与真理观等理念上丰富、深化了中华哲学体系。%This paper focuses on the origin and development of the science of jurisprudence in the Han and Wei dynasties as well as its far-reaching influence on the medieval philosophy and culture of China.The science of jurisprudence became an ideological consensus of different scholars in the late Han dynasty and the early Wei dynasty because it had a rigorous language logic,accurate definitions of specific terms,and a complete institutional construction as its core idea,thus shared by Confu-cians,Taoists,and Legalists in their philosophical orientation.Its core ideas include the following:(1)Human ultimate cognitive ability is doubtful;(2)thus,people should pay more attention to prac-tical affairs and knowledge;(3)people should attach importance to logic processing and institutional

  10. Movement and counter-movement: a history of abortion law reform and the backlash in Colombia 2006-2014.

    Science.gov (United States)

    Ruibal, Alba

    2014-11-01

    In 2006, the Constitutional Court of Colombia issued Decision C-355/2006, which liberalized the country's abortion law. The reform was groundbreaking in its argumentation, being one of the first judicial decisions in the world to uphold abortion rights on equality grounds, and the first by a constitutional court to rule on the constitutionality of abortion within a human rights framework. It was also the first of a series of reforms that would liberalize the abortion regulation in four other Latin American countries. The Colombian case is also notable for the process of strategic litigation carried out by feminist organizations after the Court's decision, in order to ensure its implementation and counter the opposition from conservative actors working in State institutions, as well as for the active role played by the Court in that process. Based on fieldwork carried out in Colombia in 2013, this article analyzes the process of progressive implementation and reactionary backlash after Decision C-355/2006, with an emphasis on strategic litigation by the feminist movement and subsequent decisions by the Constitutional Court, which consolidated its jurisprudence in the field of abortion rights. It highlights the role of both feminists and of conservative activists within State institutions as opposing social movements, and the dynamics of political and legal mobilization and counter-mobilization in that process.

  11. Movement and counter-movement: a history of abortion law reform and the backlash in Colombia 2006-2014.

    Science.gov (United States)

    Ruibal, Alba

    2014-11-01

    In 2006, the Constitutional Court of Colombia issued Decision C-355/2006, which liberalized the country's abortion law. The reform was groundbreaking in its argumentation, being one of the first judicial decisions in the world to uphold abortion rights on equality grounds, and the first by a constitutional court to rule on the constitutionality of abortion within a human rights framework. It was also the first of a series of reforms that would liberalize the abortion regulation in four other Latin American countries. The Colombian case is also notable for the process of strategic litigation carried out by feminist organizations after the Court's decision, in order to ensure its implementation and counter the opposition from conservative actors working in State institutions, as well as for the active role played by the Court in that process. Based on fieldwork carried out in Colombia in 2013, this article analyzes the process of progressive implementation and reactionary backlash after Decision C-355/2006, with an emphasis on strategic litigation by the feminist movement and subsequent decisions by the Constitutional Court, which consolidated its jurisprudence in the field of abortion rights. It highlights the role of both feminists and of conservative activists within State institutions as opposing social movements, and the dynamics of political and legal mobilization and counter-mobilization in that process. PMID:25555762

  12. Enjoying the Law

    DEFF Research Database (Denmark)

    Bjerre, Henrik Jøker

    2005-01-01

    of the concept of enjoyment is instructive, and looking at it more closely makes it possible to spell out why obedience in itself does not suffice for a moral existence. Subjecting ourselves to the prescriptions of positive law might actually function as a way of escaping the insatiable demands of the moral law....... In this case, the positive law not only sustains our enjoyment (by securing basic liberties), but also comes to function as an object of enjoyment itself....

  13. Diversity and Equality: An Ambiguous Relationship. Reflections on the US Case Law on Affirmative Action in Higher Education

    Directory of Open Access Journals (Sweden)

    Julie Ringelheim

    2006-12-01

    Full Text Available The concept of diversity has become increasingly salient in equality discourse. In the EU and in many of its member states, the term ‘diversity’ is now often used in place of ‘equality’ by advocates of voluntarist antidiscrimination policies. This trend echoes a phenomenon observable in the United States, where the notion of diversity has acquired a major place in discussions over affirmative action. Interestingly, the US Supreme Court has played an important role in this evolution: ‘promotion of diversity’ has progressively become almost the sole justification admitted for affirmative action programmes in higher education. This paper critically explores the use of diversity argument in US legal discourse on antidiscrimination. It argues that while the notion of diversity may valuably contribute to the promotion of equal opportunities, it is not without ambiguities. A first ambiguity results from the vagueness of the term “diversity.” Considered in the abstract, it may encompass all kind of differences and particularities. Absent further explanation, it is not self-evident that “achieving diversity” requires a special focus on disadvantaged racial or ethnic minorities. The second ambiguity lies with the fact that the diversity argument, as constructed in the US case law, tends to justify efforts to promote the inclusion of disadvantaged groups on the basis of its utility for the dominant majority. This line of argument may obfuscate more principled justifications and makes equality discourse more vulnerable to attacks based on claims that combating discrimination is in fact not “efficient” and thus not in the interest of the dominant majority.

  14. Health law and mental health law courses in US medical schools.

    Science.gov (United States)

    Felthous, A R; Miller, R D

    1987-01-01

    Results of a recent survey of all 127 medical schools in the United States indicate that about two fifths of medical schools offer a separate course that focuses on topics in medicine and law and a number of medical schools integrate health law topics into other courses. Presumably reflecting concern over temporary medical malpractice litigation, most health law courses include informed consent, medical malpractice, privileged/confidential information, and patients' rights. In contrast, schools that offer a course on psychiatry and law are clearly in a minority. It is elective at all but two of the 13 schools with such a course. Although the hours allotted and the format of these courses vary greatly, courses typically cover most of the topics listed on the questionnaire. Most of the courses are led or co-led by a member of the American Academy of Psychiatry and the Law. Information from two additional surveys suggests two related factors that may influence a medical school to present a separate course on health law. Medical licensing boards were surveyed to determine which states require physicians to be examined on health law. In two states that require physicians to pass a separate medical jurisprudence examination for licensure, all four-year medical schools offer a course on health law for medical students. Medical malpractice companies providing coverage in all 50 states and the District of Columbia were surveyed to determine which states have the highest claim rates. The claim rate per 1,000 physicians insured per year was significantly greater in states with health law courses than was the rate in states without such courses. PMID:3427235

  15. The trespasses of property law.

    Science.gov (United States)

    Wall, Jesse

    2014-01-01

    The purpose of this article is to identify a limit to the appropriate application of property law to the use and storage of bodily material. I argue here that property law ought to be limited to protecting 'contingent rights' and that recent cases where property rights have been recognised in semen represent the application of property law beyond this limit. I also suggest how the law ought to develop in order to avoid the overextensive use of property law.

  16. Coronial law and practice: a human rights perspective.

    Science.gov (United States)

    Freckelton, Ian; McGregor, Simon

    2014-03-01

    Coronial law and practice inevitably impact upon the human rights of those affected by deaths. It is important that such rights be incorporated in how death investigations, up to and including coronial inquests, take place. This article explores the significant impact of the jurisprudence emanating from the European Court of Human Rights, as well as the application of such law by the courts of the United Kingdom and potentially in other countries. It argues that viewing the work of coroners through the lens of human rights is a constructive approach and that, although in the coronial legislation of Australia and New Zealand, many human rights, especially those of family members, and civil liberties are explicitly protected, there remain real advantages in reflecting upon compliance with human rights by death investigation procedures and decision-making.

  17. Finding Footing in a Postmodern Conception of Law

    Directory of Open Access Journals (Sweden)

    Bryan DRUZIN

    2012-03-01

    Full Text Available The following jurisprudence paper examines the implications of postmodern thought upon our conception of law. In this paper I argue that, despite the absolute, all-consuming moral relativism towards which postmodernism seems to lead in its most extreme form, its acceptance in fact in no way undermines the possibility of finding solid ground for our legal principles. This paper contends that moral objectivity can be found in the individual experience of suffering generated by these very subjective concoctions. Subjective concoctions or not, they are real in that they imbue a sense of value into conditions, and may thus serve as foundational principles for law. While our value systems are stripped of all claim to objective authority, ultimately, all postmodernism does is force us to set aside our larger concepts of “justice,” and instead root our legal conceptions at this far more fundamental level of human experience.

  18. Applying the Legal Security Principle in Administrative Law

    Directory of Open Access Journals (Sweden)

    Vasilica NEGRUŢ

    2015-08-01

    Full Text Available The objective of the paper is founded on a very current topic and of real interest. Using content analysis, through a descriptive study research, this study aims at identifying the content of the legal security principle and the way in which the courts in Romania, the public authorities achieve a proper application of this European principle. For this purpose, it was achieved an analysis of specific objectives aiming at, in particular, the requirements of legal security principle and the way in which they manifest in the national law. We appreciate that, although it does not beneficiate of an express assignment in the Romanian legislation, being a creation of jurisprudence, the legal security principle is in the current context, a fundamental principle of state law, which should give every citizen the opportunity to evolve into a secured, predictable legal environment.

  19. A case study of global stability of strong rarefaction waves for 2×2 hyperbolic conservation laws with artificial viscosity

    Science.gov (United States)

    Duan, Ran; Ma, Xuan; Zhao, Huijiang

    This paper is concerned with the global stability of strong rarefaction waves for a class of 2×2 hyperbolic conservation laws with artificial viscosity, i.e., the p-system with artificial viscosity {

  20. Evaluation on the Implementation of Urban and Rural Planning Law and Some Policy Suggestions: A Case Study in Western China

    Institute of Scientific and Technical Information of China (English)

    Wang; Kai; Li; Hao; Zhang; Qingfei

    2015-01-01

    The study evaluates the implementation of the Urban and Rural Planning Law in western China through questionnaires, interviews, onsite visits, and literature analysis. Results show that, though the western region has made great progress in the study and publicity of the Law, as well as in their local legislation and administrative system adjustments, there are problems impeding the implementation of the Law, such as overlapping government administration, inadequate implementation measures, controversial provisions that cause operational difficulties, local legislative confusion, and poor legal awareness. As such, this article proposes suggestions as follows: to legalize the detailed implementation rules and regulations, as well as other related regulations and technical standards, in order to improve the system of urban and rural planning laws and regulations; to strengthen legal supervision to maintain the authority of the law; to formulate proper planning policy guidelines based on the specifi c conditions of western region; and to strengthen the publicity, education, and training of the Law so as to promote the publics’ legal awareness.

  1. LE RÔLE DE LA JURISPRUDENCE (CEJ DANS LE DÉVELOPPEMENT DU DROIT COMMUNAUTAIRE

    Directory of Open Access Journals (Sweden)

    Vasilica NEGRUŢ

    2008-09-01

    Full Text Available The European Court of Justice - as the Court of First Instance and, more recently, the Civil Service Tribunal - together with the national courts of the Member States represent the judicial power within the European Union. The task of this institution lies in the uniform application and interpretation of the Community law. The National courts and the public authorities are bound by the interpretation given by the Court. It has the role of the constitutional courts that are competent to solve the litigations that arise between the community institutions and the Member States or even between the Member States. The role of the European Court of Justice in the development of community law is peculiar, whereas the Court is the one who founded the idea of direct applicability of the community law in member countries of the European Union, its superiority over the national law and it developed the principle of state’s extra-contractual accountability for violation of the community law, a principle based on the priority of the community law.

  2. AN ENGLISH COURSE FOR LAW AND ADMINISTRATIVE SCIENCES STUDENTS: THE CASE OF FOURTH- YEAR STUDENTS AT ABOU BEKR BELKAID UNIVERSITY – TLEMCEN

    OpenAIRE

    Chams-Eddine, LAMRI

    2014-01-01

    The aim the present case study is to highlight the pressing need for introducing an English course at the Department of Law and Administrative Sciences, by investigating the English language needs of fourth year under-graduate students at Tlemcen University. This research work is threefold: first, analyse the situation regarding the use of English in some Algerian institutional and official work places; second, identify the students’ language needs; then, design an English course that will fu...

  3. FEATURES OF THE UNWRITTEN SOURCES OF EUROPEAN UNION LAW

    OpenAIRE

    2013-01-01

    There are three sources of European Union law: primary law, secondary law and supplementary law. Besides the case law of the Court of Justice, supplementary law includes international law and the general principles of law. It has enabled the Court to bridge the gaps left by primary and/or secondary law. International law is a source of inspiration for the Court of Justice when developing its case law. The Court cites written law, custom and usage. General principles of law are unwritten sourc...

  4. The Main Law Systems

    Directory of Open Access Journals (Sweden)

    Doranda Maracineanu

    2009-06-01

    Full Text Available The internal law of a State is the expression of the sovereign will of that Sate; however, thereare some features common to all law systems. The evolution of the society as a whole gave rise tointernational bodies (such as the European Union, through which the signatory countries haveassimilated certain unitary regulations in the internal law system. The origin of this law system is thelaw book of Justinian, during whose time the Roman law was codified. Thus, in the year 528 a. d.Justinian arranged the legal rules of those times in a unitary whole, adapted to the realities of those days.In our country, as per the fundamental law - the Constitution, the treaties and conventions ratified byRomania prevail in case of a conflict between them and the internal legislation regarding the humanrights.

  5. State obligations to implement African abortion laws: employing human rights in a changing legal landscape.

    Science.gov (United States)

    Ngwena, Charles G

    2012-11-01

    Women in the African region are overburdened with unsafe abortion. Abortion regimes that fail to translate any given abortion rights into tangible access are partly to blame. Historically, African abortion laws have been highly restrictive. However, the post-independence era has witnessed a change toward liberalizing abortion law, even if incremental for many jurisdictions. Furthermore, Article 14 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa has significantly augmented the regional trend toward liberalization by recognizing abortion as a human right in given circumstances. However, states are failing to implement abortion laws. The jurisprudence that is emerging from the European Court of Human Rights and United Nations treaty bodies is a tool that can be used to render African governments accountable for failure to implement domestic abortion laws. PMID:22944215

  6. Environmental law

    International Nuclear Information System (INIS)

    This pocketbook contains major federal regulations on environmental protection. They serve to protect and cultivate mankind's natural foundations of life, to preserve the environment. The environmental law is devided as follows: Constitutional law on the environment, common administrative law on the environment, special administrative law on the environment including conservation of nature and preservation of rural amenities, protection of waters, waste management, protection against nuisances, nuclear energy and radiation protection, energy conservation, protection against dangerous substances, private law relating to the environment, criminal law relating to the environment. (HSCH)

  7. Extension of the preliminary rulings procedure outside the scope of Community law: ‘The Dzodzi line of cases’

    Directory of Open Access Journals (Sweden)

    Saulius Lukas Kaleda

    2000-09-01

    Full Text Available ‘The Dzodzi line of cases’ evidence that the functioning of the preliminary rulings procedure under Article 234 EC is not restricted to the scope of Community law, but extends also to the cases governed by national law referring to certain Community provision or concept. Most controversially in the context of this far-reaching pronouncement, the Court dismissed the views expressed by its Advocates General, actually, in all the cases of this type (recently in Roman Angonese , 6 June 2000. Ten years after the judgment in Dzodzi has been delivered, the future development of the tendency seems to be still open to radically different solutions. A compromise solution may be found in the acceptance of jurisdiction in ‘comparable’ situations, ascertained on the basis of relationship between the interpretation and the facts of a particular case. This solution should be based on the assessment of the ‘ability to provide helpful interpretation’ and the possibility to define a legal problem precisely, as a prerequisite for the full exchange of arguments. Then, it could provide a consistent attitude of the Court towards all the cases on the admissibility of references under Article 234 EC. The uncertainty inevitably following such a solution could be outweighed by the need to retain a flexible and cooperative attitude.

  8. Regulatory on the corporate social responsibility in the context of sustainable development by mandatory in the world trade organization law perspective (case study in Indonesia

    Directory of Open Access Journals (Sweden)

    SH. M. Hum. TAUFIQURRAHMAN

    2013-12-01

    Full Text Available Regulatory on the Corporate Social Responsibility (CSR by mandatory in Indonesia as stipulated in Article 74 of Law No. 40/2007 on the Limited Liability Company (hereafter the Company Law raises a contradiction. Those who agree argue that the company is not solely for profit, but more than that are participating in social issues and the preservation of the environment within the framework of sustainable development. Conversely, those who disagree view that social issues and the environment are the full responsibility of state. The involvement of a corporation in social and environmental activities is voluntary. Verdict of the Indonesian Constitutional Court in case no. 53/PUU-VI / / 2008 dated 13 April 2009 which rejected a requesting of material test of the Article 74 paragraph (1, (2 and (3 of the Company Law confirms the existence of the CSR by mandatory in international trade traffic today. The analytical results indicates that mandatory CSR regulation in the Company Law is not a form of a state intervention to the private activities. In addition, the arrangement is not contrary to the principles of free trade within the framework of the General Agreement on Tariffs and Trade (GATT / World Trade Organization (WTO.

  9. To what extent does Tobler's law of geography apply to macroecology? A case study using American palms (Arecaceae)

    DEFF Research Database (Denmark)

    Bjorholm, Stine; Svenning, Jens-Christian; Skov, Flemming;

    2008-01-01

    Tobler's first law of geography, 'Everything is related to everything else, but near things are more related than distant things' also applies to biological systems as illustrated by a general and strong occurrence of geographic distance decay in ecological community similarity. Using American...... palms (Arecaceae) as an example, we assess the extent to which Tobler's first law applies to species richness and species composition, two fundamental aspects of ecological community structure. To shed light on the mechanisms driving distance decays in community structure, we also quantify the relative...

  10. Contracts Contrary to Public Policy under English and Dutch Law : The Case of Agreement Commercializing the Human Body

    NARCIS (Netherlands)

    Mansoor, Zeeshan

    2014-01-01

    Both English and Dutch law contain general rules that result in the invalidity of contracts which conflict with morality and/or public policy. Working on the premise that each country has its own unique set of factors shaping public interests, this article highlights methodological aspects of identi

  11. Reaffirming Diversity: A Legal Analysis of the University of Michigan Affirmative Action Cases. A Joint Statement of Constitutional Law Scholars.

    Science.gov (United States)

    Harvard Civil Rights Project, Cambridge, MA.

    On June 23, 2003, the United States Supreme Court upheld the constitutionality of race-conscious admissions policies designed to promote diversity in higher education. The Grutter versus Bollinger decision upheld the University of Michigan Law School race-conscious admissions policy as constitutional. However, in Gratz versus Bollinger, it held…

  12. Too Much Too Soon? A Case for Hesitancy in the Passage of State and Federal Password Protection Laws

    Directory of Open Access Journals (Sweden)

    Megan Davis

    2014-05-01

    Full Text Available Recently, significant attention has been given to employers’ concern and involvement over employees’ use of social media. The amount of attention given to social media has resulted in a number of proposed federal laws and multiple state laws discussing employers’ involvement and participation in employees’ social media use. The purpose of this note is to advocate for a more hesitant legislative stance toward social media password protection laws in an effort to avoid unnecessarily over-legislating in an area of privacy law that is still developing. While the author does not make an outright rejection of such legislation, the author argues that the speed and political vigor with which lawmakers are moving forward with such statutes raises the risk of statutory ambiguity, confusion amongst affected parties, and unnecessary burdens on employers. The note provides a thorough review of current trends in employers asking for social media login information, current legislation protecting employees’ social media use, and proposed legislation meant to combat an employer’s ability to obtain social media information.

  13. INCORPORATING RESILIENCE INTO LAW AND POLICY: A case for preserving a natural resource legacy and promoting a sustainable future

    Science.gov (United States)

    The concept of sustainability has been widely embraced by society and in environmental law and policy as a measure to ensure a heritage of economic viability, social equity, and environmental stewardship. In a large number of statutes, Congress and many state legislatures have be...

  14. Nonlinear stability of periodic traveling wave solutions of systems of viscous conservation laws in the generic case

    OpenAIRE

    Johnson, Mathew A.; Zumbrun, Kevin

    2010-01-01

    Extending previous results of Oh--Zumbrun and Johnson--Zumbrun, we show that spectral stability implies linearized and nonlinear stability of spatially periodic traveling-wave solutions of viscous systems of conservation laws for systems of generic type, removing a restrictive assumption that wave speed be constant to first order along the manifold of nearby periodic solutions.

  15. Child Molesters: A Behavioral Analysis. For Law-Enforcement Officers Investigating Cases of Child Sexual Exploitation. Second Edition.

    Science.gov (United States)

    Lanning, Kenneth V.

    This booklet provides a behavioral analysis of child molesters. The terms child molesters and pedophiles are defined and distinctions are drawn between the two. The second section develops a law enforcement typology differing from those of mental health professionals, focusing on pre-arrest behavior or pre-identification behavior of child…

  16. Limit laws for Zipf's law

    International Nuclear Information System (INIS)

    In this communication we establish stochastic limit laws leading from Zipf's law to Pareto's and Heaps' laws. We consider finite ensembles governed by Zipf's law and study their asymptotic statistics as the ensemble size tends to infinity. A Lorenz-curve analysis establishes three types of limit laws for the ensembles' statistical structure: 'communist', 'monarchic', and Paretian. Further considering a dynamic setting in which the ensembles grow stochastically in time, a functional central limit theorem analysis establishes a Gaussian approximation for the ensembles' stochastic growth. The Gaussian approximation provides a generalized and corrected formulation of Heaps' law. (fast track communication)

  17. Patient-reported outcomes instruments: bridging the gap between international copyright laws and common practice for developers and users--a case example.

    Science.gov (United States)

    Anfray, Caroline

    2009-12-01

    Copyright laws are intended to protect the rights of authors in their literary, scientific, and artistic works. The recent controversy about the standardized version of the Asthma Quality of Life Questionnaire between Elizabeth Juniper and Eirini Grammatopoulou et al. is an example of the difficulties inherent to copyright faced by developers and users of patient-reported outcome (PRO) instruments. This brief communication presents the basics of international copyright laws (i.e., the Berne Convention), the facts behind the controversy, and our analysis of the case based on our experience as a distributing center of PRO instruments. We conclude that better communication between developers and users would prevent most unfortunate complications and misunderstandings.

  18. Pollution from offshore installations: a case-study of marine pollution in the context of general environmental law

    International Nuclear Information System (INIS)

    The purpose of this thesis is to examine the present state of affairs regarding the legal rules for the control of pollution caused by activities related to offshore installations. But, since pollution from offshore installations is but a form of marine pollution, such an examination can only take place within the wider framework of general environmental law. The true impact of even the more precise rules on offshore installations cannot be fully appreciated unless we have a comprehensive understanding of how the whole system of environmental protection works. I will endeavour to incorporate such considerations in the discussion of offshore problems, as I consider the latter an application of wider principles operating even beyond the field of environmental law. (UK)

  19. Information seeking and students studying for professional careers: the cases of engineering and law students in Ireland

    Directory of Open Access Journals (Sweden)

    Gillian Kerins

    2004-01-01

    Full Text Available This paper reports the results of two empirical studies which explored the information seeking behaviour of engineering and law students in Ireland. Findings reveal similar patterns in the information seeking behaviour between students studying to become professionals and information seeking patterns of these groups identified in Leckie et al.'s model. Students learned their information seeking strategies, including effective and less effective approaches, from educators and continuing mis-perceptions of libraries and information professionals. The studies suggest that engineering and law students in Ireland could benefit from greater information literacy training and awareness, enabling them to acquire the information skills they need to function effectively and efficiently in their future professional work lives.

  20. Rate of Return to and Price of Higher Education in Turkey: A Case Study of Law Faculty

    OpenAIRE

    Gölpek, Filiz; Hasan Kalyoncu Üniversitesi, İİSBF/İktisat Bölümü

    2014-01-01

    The fact that higher education service provides important benefits for individuals and society has resulted in excess demand. This is directly related to a simple economic law suggesting that the demand for goods or services of which price is zero or low will increase until its marginal benefit approximates zero or very close to zero. However, it seems that demand and supply of education is difficult to determine based on the demand-supply and price equilibrium included in economic theory. In...

  1. Exploration on Detailed Control Planning Under Urban-Rural Planning Law:A Case Study on Wuhan

    Institute of Scientific and Technical Information of China (English)

    2010-01-01

    Based on the planning practice in Wuhan after the Urban-Rural Planning Law was implemented in 2008,this paper reviews the evolution of detailed control planning in China,and addresses its main problems and conflicts.The innovation of the hierarchical planning and administration system is discussed,and the administrative measures for the transition period in which the detailed control plans have not yet been made for all the urban areas is proposed.

  2. BUT IS IT SPEECH? MAKING CRITICAL SENSE OF THE DOMINANT CONSTITUTIONAL DISCOURSE ON PORNOGRAPHY, MORALITY AND HARM UNDER THE PERVASIVE INFLUENCE OF UNITED STATES FIRST AMENDMENT JURISPRUDENCE

    OpenAIRE

    Letetia van der Poll

    2012-01-01

    Under the pervasive influence of United States First Amendment jurisprudence, adult gender-specific sexually explicit (or “pornographic”) material is conceptualized, and thus protected in the “marketplace of ideas”, as a particular mode of expression; to be viewed as part of the fabric of an open, free and democratic society. The values which free expression are seen to promote centre upon the advancement of political debate and promotion of personal self-fulfilment and autonomy. Attempts to ...

  3. Notas e reflexões sobre a jurisprudência internacional em matéria ambiental: a participação de indivíduos e organizações não governamentais Notes and reflections on environmental international jurisprudence: the participation of individuals and non-governmental organizations

    Directory of Open Access Journals (Sweden)

    Fúlvio Eduardo Fonseca

    2010-12-01

    Full Text Available O objetivo do artigo é oferecer uma sistematização da jurisprudência internacional relevante envolvendo onGs e meio ambiente. Para isso, buscou-se mapear os casos exemplares levados às instâncias internacionais, como forma de ilustrar o potencial e as limitações da estratégia de se recorrer ao direito internacional, levada a efeito por um crescente número de indivíduos e organizações. A pesquisa considerou as sentenças e decisões de órgãos judiciais (Corte Interamericana de Direitos Humanos, Corte européia de Direitos Humanos, tribunal de Justiça europeu e Corte Internacional de Justiça e quasi-judiciais (Comitê de Direitos Humanos das nações unidas, constituindo um aporte inicial aos interessados na matéria e um incentivo a estudos futuros que venham a complementá-la.The aim of this article is to present relevant international jusrisprudence involving NGOs and environment in a systematic way. Therefore, it seeks to identify examples of cases taken to international instances. The reasearch considered sentences and decisions as an example of the potential and limitation of the strategy used by an increasing number of individuals and organizations in making use of judicial (Interamerican Court of Human Rights, European Court of Human Rights, European Tribunal of Justice and International Court of Justice and quasi-judicial organs (United Nations Human Rights Committee, as an initial contribution to those interested in this issue and an incentive for future studies that could complement it.

  4. Determining the status of non-transferred embryos in Ireland: a conspectus of case law and implications for clinical IVF practice.

    LENUS (Irish Health Repository)

    Sills, Eric Scott

    2009-01-01

    The development of in vitro fertilisation (IVF) as a treatment for human infertilty was among the most controversial medical achievements of the modern era. In Ireland, the fate and status of supranumary (non-transferred) embryos derived from IVF brings challenges both for clinical practice and public health policy because there is no judicial or legislative framework in place to address the medical, scientific, or ethical uncertainties. Complex legal issues exist regarding informed consent and ownership of embryos, particularly the use of non-transferred embryos if a couple separates or divorces. But since case law is only beginning to emerge from outside Ireland and because legislation on IVF and human embryo status is entirely absent here, this matter is poised to raise contractual, constitutional and property law issues at the highest level. Our analysis examines this medico-legal challenge in an Irish context, and summarises key decisions on this issue rendered from other jurisdictions. The contractual issues raised by the Roche case regarding informed consent and the implications the initial judgment may have for future disputes over embryos are also discussed. Our research also considers a putative Constitutional \\'right to procreate\\' and the implications EU law may have for an Irish case concerning the fate of frozen embryos. Since current Medical Council guidelines are insufficient to ensure appropriate regulation of the advanced reproductive technologies in Ireland, the report of the Commission on Assisted Human Reproduction is most likely to influence embryo custody disputes. Public policy requires the establishment and implementation of a more comprehensive legislative framework within which assisted reproductive medical services are offered.

  5. Environmental law

    International Nuclear Information System (INIS)

    This comprehensive reference book on environmental law and practice also is a valuable textbook for students specializing in the field. The entire law on pollution control and environmental protection is presented in an intelligent system, covering the latest developments in the Federal and Land legislation, public environmental law, and the related provisions in the fields of civil law and criminal law. The national survey is rounded up by information concerning the international environmental law, environmental law of the European Communities, and of other foreign countries as e.g. Austria and Switzerland. The author also reviews conditions in neighbouring fields such as technology and labour law, environmental economy, environmental policy. Special attention is given to current topics, as e.g. relating to genetic engineering, disused landfills or industrial sites, soil protection, transport of hazardous goods, liability for damage to forests, atomic energy law, and radiation protection law. The latest publishing dates of literature and court decisions considered in the book are in the first months of 1989. (RST)

  6. Estimation of drought and flood recurrence interval from historical discharge data: a case study utilising the power law distribution

    Science.gov (United States)

    Eadie, Chris; Favis-Mortlock, David

    2010-05-01

    The choice of which statistical distribution to fit to historical discharge data is critical when attempting to predict the most extreme flows. It has been shown that depending upon the distribution selected, the calculated return periods can vary dramatically. Cunnane (1985) discussed the factors affecting the choice of distribution for river flow series data, and was able to show that small differences in the Extreme Value Type 1 (Gumbel), Type 2, and Type 3 can lead to large differences in the predicted return period. Indeed this divergence increases as the return period becomes larger: a finding which has obvious implications for fluvial management. Despite this, in many studies which fit a frequency-magnitude distribution to fluvial discharge data, the choice of distribution appears driven by regional convention, or even by some other apparently arbitrary factor. Benson (1968) analysed data for ten US stations, and compared the fit using the log-normal, gamma, Gumbel, log-Gumbel, Hazen and log-Pearson type 3 distributions. On the basis of this study alone, the standard approach to flow frequency estimation in the USA became the fitting of a log-Pearson type 3 (LP3) distribution (US Water Resources Council, 1982). While several other countries have adopted a similar approach, usage of the LP3 distribution is not geographically universal. Hydrologists in the United Kingdom conventionally utilise a fitted generalised logistic distribution for flow frequency estimation (Robson and Reed, 1999) while Chinese hydrologists utilise the log-normal distribution (Singh, 2002). Choice of fitted distribution is obviously crucial, since selecting one distribution rather than another will change the estimated probabilities of future droughts and floods, particularly the largest and rarest events. Malamud et al. (1996) showed that a flood of equivalent size to that experienced on the Mississippi in 1993 has a recurrence interval on the order of 100 years when a power-law

  7. Effect of a “pill mill” law on opioid prescribing and utilization: The case of Texas

    Science.gov (United States)

    Lyapustina, Tatyana; Rutkow, Lainie; Chang, Hsien-Yen; Daubresse, Matthew; Ramji, Alim F.; Faul, Mark; Stuart, Elizabeth A.; Alexander, G. Caleb

    2016-01-01

    Background States have attempted to reduce prescription opioid abuse through strengthening the regulation of pain management clinics; however, the effect of such measures remains unclear. We quantified the impact of Texas’s September 2010 “pill mill” law on opioid prescribing and utilization. Methods We used the IMS Health LRx LifeLink database to examine anonymized, patient-level pharmacy claims for a closed cohort of individuals filling prescription opioids in Texas between September 2009 and August 2011. Our primary outcomes were derived at a monthly level and included: (1) average morphine equivalent dose (MED) per transaction; (2) aggregate opioid volume; (3) number of opioid prescriptions; and (4) quantity of opioid pills dispensed. We compared observed values with the counterfactual, which we estimated from pre-intervention levels and trends. Results Texas’s pill mill law was associated with declines in average MED per transaction (−0.57 mg/month, 95% confidence interval [CI] −1.09, −0.057), monthly opioid volume (−9.99 kg/month, CI −12.86, −7.11), monthly number of opioid prescriptions (−12,200 prescriptions/month, CI −15,300, −9,150) and monthly quantity of opioid pills dispensed (−714,000 pills/month, CI −877,000, −550,000). These reductions reflected decreases of 8.1–24.3% across the outcomes at one year compared with the counterfactual, and they were concentrated among prescribers and patients with the highest opioid prescribing and utilization at baseline. Conclusions Following the implementation of Texas’s 2010 pill mill law, there were clinically significant reductions in opioid dose, volume, prescriptions and pills dispensed within the state, which were limited to individuals with higher levels of baseline opioid prescribing and utilization. PMID:26778760

  8. Reconfiguring trade mark law

    DEFF Research Database (Denmark)

    Elsmore, Matthew James

    2013-01-01

    First, this article argues that trade mark law should be approached in a supplementary way, called reconfiguration. Second, the article investigates such a reconfiguration of trade mark law by exploring the interplay of trade marks and service transactions in the Single Market, in the cross......-border setting, with a particular focus on small business and consumers. The article's overall message is to call for a rethink of received wisdom suggesting that trade marks are effective trade-enabling devices. The case is made for reassessing how we think about European trade mark law....

  9. Laws Editorial

    Directory of Open Access Journals (Sweden)

    Lawrence O. Gostin

    2011-05-01

    Full Text Available My life’s work has positioned me in two diverse worlds’ one in science and one in law [1]. I publish in both fields, and the traditions are very different. Law journals typically have narrow readerships, principally those in the legal academy. The law review tradition, particularly in North America, is student edited, non-peer reviewed, and characteristically long and detailed. Law libraries often spend large portions of their budgets on journal subscriptions, which they store in scarce space. [...

  10. Does Inclusion Lead to More Successful Laws? : A Case Study of the Domestic Violence Act in Uganda

    OpenAIRE

    Blomdahl, Emma

    2016-01-01

    This thesis is based on a field study conducted in Uganda in the fall of 2015. The study is analyzing at the process behind the Domestic Violence Act, a law that came in to place in 2010, and try to scrutinize it by using the inclusive democracy theory of Iris Marion Young. In the study numerous interviews with several women’s organizations, as well as representatives for the Ministry of Gender, Labour and Social Development and local police officers are presented.   The study aims at getting...

  11. Whither the common law derivative action

    OpenAIRE

    Yap, JL

    2009-01-01

    The common law derivative action was developed as a result of decades of case law in common law jurisdictions. Hong Kong and Singapore continue to retain the common law derivative action within their respective legal frameworks, despite both having enacted statutory derivative actions. This paper considers the situations in which the common law derivative action continues to have practical application in each of these jurisdictions. It then considers whether the common law derivative acti...

  12. Brussels II Bis Regulation and the Competence of the Romanian Courts in the Divorce Cases

    Directory of Open Access Journals (Sweden)

    Gabriela LUPSAN

    2010-11-01

    Full Text Available Jurisdiction competence of the Romanian courts in divorce matters, with an international element was established, before Romania joined the EU, by applying the deposition of article 148-157 of Law No. 105/1992 on private international law relations. The court apprehended with such a request, verifying its competence either officially or fallowing the defendant's invocation of thejurisdiction non-compete exception plead, it was at hand one of two legal solutions, namely: either the rejection of the invoked exception and the statement of competence, a situation which would identify, according to article 20 and 22 of Law no. 105/1992, the applicable law in divorce matters under the aspects of material law, or it would concede the exception and it would dismissed the action,according to article 157 of Law no. 105/1992, as not being under the jurisdiction of the Romanian Court, but under a foreign one. The situation has changed with the ascension of Romania to the EU,when the EU Council regulations took precedence over the national law and they have direct and immediate applicability in the cases that the Romanian courts judge. The new competence of the EUin relation to matrimonial matters determines the Romanian judge to consider two categories of law sources, depending on the connection element (habitual residence of the spouses or at least one ofthem, joint citizenship that appears in the case of divorce and it links the trial to the Community area or the extra-communitarian one. The study aims at, among others, analyzing the criteria by which theRomanian courts have their jurisdiction in a divorce case in which the element of foreign origin is related to a EU Member State and the solutions that we have at hand to pass on the jurisdictional noncompete exception and on lis pendens exception, presenting in this respect also cases of jurisprudence. Also, there are references to the relation of the regulation with other international

  13. La théorie du droit coutumier dans la recherche : ethnologie, théorie du droit et histoire du droit The theory of customary law in research: ethnology, legal theory and legal history

    Directory of Open Access Journals (Sweden)

    Ilia ch. Axionov

    2009-05-01

    Full Text Available Les auteurs cherchent à mettre de l’ordre dans la terminologie utilisée dans la science juridique, notamment à préciser les termes « coutume » et « droit coutumier ». En s’appuyant sur le droit romain classique et sur la théorie du droit ils passent en revue l’évolution des approches théoriques dans ce domaine en Russie ancienne et contemporaine. La ligne dominante chez les chercheurs russes était à souligner que ces coutumes n’acquièrent un caractère juridique que si elles reçoivent une protection de la part de l’Etat. L’article analyse aussi les travaux qui concernent la solution pratique de tels ou tels cas à l’aide des normes du droit coutumier tout en soulignant la nature sociale du droit coutumier.The authors try to bring coherence to terminology used in jurisprudence, especially through precise definitions for the terms « custom » and « customary law ». Relying on classical roman law and legal theory, they describe the evolution of theoretical approaches existing in this field in ancient and contemporary Russia. Russian scholars have generally agreed that these customs acquire a legal character only if they receive protection from the State. The article analyzes as well research proposing practical solutions of various cases which adopt the norms of customary law and while underlining the social nature of customary law.

  14. Evaluating the development of empirical legal research in Brazil: the case of Projeto Pensando o Direito (Project Thinking the Law

    Directory of Open Access Journals (Sweden)

    Ricardo de Lins e Horta

    2014-07-01

    Full Text Available Although empirical legal research in Brazil has existed since the 70’s, and the use of empirical methods has expanded sharply in the last years, the reasons underlying its relative scantiness have been matter of debate. Among these reasons would be the low level of scientific rigour, the isolation and the absence of institutional infrastructure. Assuming that the Projeto Pensando o Direito (Project Thinking the Law has been providing institutional support, financing and publicity to this kind of research, this paper aims to test the hypothesis that its 56 published research reports, covering the period between 2007 and 2012, show a relative increase in the use and diversity of empirical methods akin to those used in the social sciences. An increase in the number of approaches used in researches was found, as well as an expansion in the use of questionnaires and interviews. These findings suggest that legal research in Brazil is currently going through a process of spread of multi-method strategies and of a dialogue between Law and Social Sciences.

  15. Construction of Case Teaching of Compound Veterinary Law Model in Higher Agricultural College%高等农业院校兽医法规学复合式案例教学模式的构建

    Institute of Scientific and Technical Information of China (English)

    王开; 裴志花; 胡桂学; 杨春馥; 黄海龙; 张加力

    2013-01-01

    结合兽医法规学的教学现状,分析了复合式案例教学的可行性,并从案例选取的方向、拓展及其意义以及形成案例群族体系、兽医法规案例库的有效管理等方面,探讨了如何构建兽医法规学的复合式案例教学模式。%According to the present situation of the teaching of veterinary law, the feasibility of composite case teaching was analyzed. How to construct a composite case teaching model of veterinary law was discussed from the aspects of case selection direction, extension and its significance, forming case family system and the effective management of veterinary law case library, etc.

  16. Risk, statistical inference, and the law of evidence: The use of epidemiological data in toxic tort cases

    Energy Technology Data Exchange (ETDEWEB)

    Brannigan, V.M. [Univ. of Maryland, College Park, MD (United States); Bier, V.M. [Univ. of Wisconsin, Madison, WI (United States); Berg, C. [Georgetown Univ. School of Medicine, Washington, DC (United States)

    1992-09-01

    Toxic torts are product liability cases dealing with alleged injuries due to chemical or biological hazards such as radiation, thalidomide, or Agent Orange. Toxic tort cases typically rely more heavily that other product liability cases on indirect or statistical proof of injury in toxic cases. However, there have been only a handful of actual legal decisions regarding the use of such statistical evidence, and most of those decisions have been inconclusive. Recently, a major case from the Fifth Circuit, involving allegations that Benedectin (a morning sickness drug) caused birth defects, was decided entirely on the basis of statistical inference. This paper examines both the conceptual basis of that decision, and also the relationships among statistical inference, scientific evidence, and the rules of product liability in general. 23 refs.

  17. Law 302.

    Science.gov (United States)

    Manitoba Dept. of Education, Winnipeg.

    This publication outlines a law course intended as part of a business education program in the secondary schools of Manitoba, Canada. The one credit course of study should be taught over a period of 110-120 hours of instruction. It provides students with an introduction to the principles, practices, and consequences of law with regard to torts,…

  18. The jurisprudence of legal person thinking%法律人思维的法理学之义

    Institute of Scientific and Technical Information of China (English)

    方筱闽

    2013-01-01

      价值立场决定目标设计,目标设计决定、引导思维和行动。法庭论辩三方的价值立场不同,其法律思维也不同。相互对抗的“律师”和检察官由期望的法律后果确定价值立场,决定其由结果推过程的逆向法律思维方式。客观中立的价值立场使得专业范式和法律话语成为“法官”法律思维特征。法律思维即扎根于法理学智慧中。%Value position decides the target design, target design decides and guides thinking and action.Three parties of court debate have different value position, the legal thinking is also different.The confrontation"lawyer"and prosecutors decide value position from desired legal consequences, the result is the reverse process by way of legal thinking.The objective and neutral value position makes professional paradigm and legal words become the characteristics of the legal thinking.Legal thinking is rooted in the wisdom of jurisprudence.

  19. SOCIAL ASPECTS OF THE REFORM TO THE EUROPEAN UNION PUBLIC PROCUREMENT LAW

    Directory of Open Access Journals (Sweden)

    Roberta Lukošiūnienė

    2014-08-01

    Full Text Available Purpose: the article aims to analyse the reform of the European Union public procurement law on social aspects in different stages of the reformed public procurement procedures. Comprehensive reform of the European Union public procurement law was approved by the European Parliament in January 2014, adopted by the Council in February 2014, and legislative acts published on 28 March 2014. The current directives 2004/18/EC on procurement in public works, supply and service contracts, as well as 2004/17/EC on procurement in the water, energy, transport and postal services sectors were updated. Additionally, the new directive 2014/23/EU on the award of the concession contracts providing an orientation previously given only by the case law of the Court of Justice of the European Union was adopted. Among other things the reform is highly focused on greater scope of social issues to be addressed in the public procurement procedures. The authors’ aim to analyse the way social issues are being tackled under the new directives. Design/methodology/approach – logical systematic method will be used in order to ascertain the content of the laws within the scope of the social aspects, whereas comparative method will be applied to ascertain national and European Union legal acts. On the basis of analytical method conclusions will be drawn. Findings – the authors will focus on legal analysis and considerations on social aspects in different stages of the reformed public procurement procedures ie in the stage when deciding on the subject-matter of the contract and the technical specifications, in the qualitative selection, in applying the award criteria and in the stage of performance of the contract. Research limitations/implications – the new directives also set new mandatory grounds related to the infringements of social and labour laws for excluding suppliers from the competitions for contracts, though the Paper will not analyse in-depth the legal

  20. Legal Pluralism: Interactions Between Official and Unofficial Laws: The Case Study of a Multi-ethnic Community Farm

    Directory of Open Access Journals (Sweden)

    Gabriela Ribeiro Farinha

    2015-12-01

    Full Text Available A multi-ethnic community farm, located in California, was created in 2011 to be commonly exploited by refugees and emigrants from different countries.This paper aims to describe, as an observable fact, how distinct non-state normativities behave and relate in their dynamic process of interaction, surpassing the usual state/local law bases of analysis.The farm was approved by the state authorities and the NGO has created its regulations. Concomitantly, the distinct communities of farmers have defied and transformed the farm’s regulations by incorporating their competing legal land tenure regimes and legal postulates in the same structure of the unofficial law of the farm, through a common frame of meaning and the enactment of the “autonomy rule”. This has allowed the growers to follow their normativities inside the farm. However, its creation process and daily practice also exposes the relevance of the official law in its constitution, shape and function. En 2011 se creó en California una granja multiétnica comunal, para que fuera explotada en comunidad por refugiados y emigrantes de diferentes países. Este artículo pretende describir, como hecho observable, cómo se comportan y se relacionan normativas no estatales en un proceso dinámico de interacción, superando las bases de análisis estado/local habituales del derecho. Las autoridades estatales aprobaron la granja, y la ONG creó su propia normativa. Al mismo tiempo, las diferentes comunidades de agricultores han desafiado y transformado el reglamento de la granja, incorporando sus regímenes legales de tenencia de tierras vigentes, y los postulados legales en la misma estructura del derecho no oficial, a través de un marco común de significado y la promulgación de la “norma de autonomía”. Esto ha permitido a los productores seguir sus normativas dentro de la finca. Sin embargo, su proceso de creación y práctica diaria también pone de manifiesto la importancia del

  1. The Sources of Administrative Law and their Role in Consecrating the Administrative Space of European Union

    Directory of Open Access Journals (Sweden)

    Gina Livioara Goga

    2012-05-01

    Full Text Available At the level of the European Union, we cannot find a proper law in the sector of publicadministration , there are no precise regulations of administrative law within the legislation of the EuropeanUnion therefore we cannot talk about a system of administrative law characterized by written laws. Theexperience of half a century in European integration has proved, given the diversity of the systems ofEuropean law that the most important activity of the European judge was to create the law, to cover somegaps, to define or redefine the principles of administrative law. Since the jurisprudence of the Court of Justiceof the European Union has known a more and more development and recognition in the past decades andespecially at the level of the member states, the European administrative law has been identified with theseprinciples that seem to be defining it in the future in the lack of a general codification of what we call anEuropean administrative space. The purpose of this research is to understand the sources of the Europeanadministrative law analyzing at the same time the legislation of the European Union as well as thejurisprudence of the Court of justice and the other instances of the European Union.

  2. The Law and Practice of Administrative Courts in Ethiopia: The Case of Addis Ababa City Administrative Tribunal

    Directory of Open Access Journals (Sweden)

    Abate Ayana

    2011-04-01

    Full Text Available Addis Ababa city administration established an administrative tribunal based on proclamation No. 6/2008. Thus, the city administrative tribunal would revise administrative measures taken by the concerned city offices. In other words, it hears and decides on appeals which are brought to it by the civil servants. The study which adopted the survey research design mainly through personal interview with court administrators revealed that the city administrative tribunal has performed its function in proper manner and base on the laws. Besides, it is observed that in rendering decision the tribunal carefully followed the laid down procedures. Speedy trial was also one quality of the administrative tribunal. It was therefore concluded that the administrative tribunal operated in a legal and procedural sound manner. Nevertheless, for enhanced productivity, professional trainings for the staff of Addis Ababa City Administrative Tribunal in particular and Administrative Courts in Ethiopia in general should be taken seriously.

  3. Is the German Federal Constitutional Court off course? Some thoughts on the control intensity of administrative case law

    International Nuclear Information System (INIS)

    The article comes to the overall conclusion that the efforts of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) to make the protection of basic rights more effective by largely restricting the discretionary powers of the administration, as justified as this may be from the point of view of general constitutional law, ultimately leads to legal uncertainties for both legal practitioners and persons seeking legal remedies. It is not only that court proceedings will be delayed by the increased necessity to consult outside experts, but also the practising administrative judges themselves will only slowly be able to adjust to the new situation. It remains to be seen whether the Federal Administrative Court (Bundesverwaltungsgericht) will be able to finally provide for the necessary clarity in the foreseeable future. (orig.)

  4. Nonlinear stability of periodic traveling wave solutions of systems of viscous conservation laws in the generic case

    Science.gov (United States)

    Johnson, Mathew A.; Zumbrun, Kevin

    Extending previous results of Oh-Zumbrun and Johnson-Zumbrun, we show that spectral stability implies linearized and nonlinear stability of spatially periodic traveling wave solutions of viscous systems of conservation laws for systems of generic type, removing a restrictive assumption that wave speed be constant to first order along the manifold of nearby periodic solutions. Key to our analysis is a nonlinear cancellation estimate observed by Johnson and Zumbrun, along with a detailed understanding of the Whitham averaged system. The latter motivates a careful analysis of the Bloch perturbation expansion near zero frequency and suggests factoring out an appropriate translational modulation of the underlying wave, allowing us to derive the sharpened low-frequency estimates needed to close the nonlinear iteration arguments.

  5. International law problems for realisation of the IAEA conventions on notification and assistance in the case of a nuclear accident

    Energy Technology Data Exchange (ETDEWEB)

    Petrov, M.M.

    1993-12-31

    The Chernobyl accident underscored the need for an early warning system and international assistance plan in case of a nuclear accident. Shortly after Chernobyl, two conventions were adopted under the auspices of the IAEA. The convention on Early Notification of a Nuclear Accident, in force since 1986, establishes an early warning system for all nuclear accidents whose effects might cross national boundaries. Under the convention on Assistance in the Case of a Nuclear accident or radiological Emergency,in force since 1987, countries must facilitate prompt assistance in case of a nuclear accident or radiological emergency, to minimize it`s consequences. Issues with the conventions are described.

  6. Health Law: Notifiable diseases

    Directory of Open Access Journals (Sweden)

    Gastón Casaux

    2014-07-01

    Full Text Available This work made up the ultimate Health Law, latest new law branch from older date in the whole world but recently appearance in our country. As usual in other cases, we increase one of de most relevant events: the endless number of diseases that we advise obligatory, because they have been regulated for consecutive by-laws en the codex from 1946, 1958 and 2004. Since 2012 in order of the successful transformations in the modern technology with the change of rules in our order-law, it was necessary to recall their contents and we achieve in order of the promulgation the decree number 41/12 dated in February 16. In the second chapter we analyse one of the most bothersome contents: the diseases becoming from the food habitudes (named eia´s, whatever we considered a real significance for the common of the citizens and consumers, because they prevail notoriously in the human health.

  7. Tratados internacionais em matéria tributária e sua relação com o direito interno no Brasil The impact of the international treaties on tax law on the Brazilian law

    Directory of Open Access Journals (Sweden)

    Gustavo Mathias Alves Pinto

    2008-06-01

    Full Text Available Este artigo tem como objetivo apresentar os principais aspectos a respeito do tratamento oferecido aos tratados internacionais em matéria tributária no ordenamento jurídico brasileiro. Para tal, o artigo analisa as características desses tratados enquanto fonte de direito internacional, seu posicionamento hierárquico perante a constituição federal e legislação infraconstitucional, bem como a jurisprudência mais relevante a respeito da matéria. Ao final, pretende-se demonstrar que, nos casos específicos sobre os quais tais instrumentos versarem, estes prevalecem sobre o ordenamento interno em razão do princípio da autolimitação da soberania no tocante à imposição tributária.The following article presents the main aspects of the interaction between tax treaties and national law within the brazilian legal system. The article analyses the characteristics of such treaties as sources of international law, their hierarchy before the constitution and legislation, as well as the relevant jurisprudence on the subject. The article aims at demonstrating that, regarding the specific situations addressed in its body, the tax treaty takes precedence over the national law, based on the principle of selflimitation of taxation power.

  8. Prevention and the security state: Observations on an emerging jurisprudence of risk Prévention et État sécuritaire : observations sur l'émergence d'une jurisprudence du risque

    Directory of Open Access Journals (Sweden)

    Mark Brown

    2011-06-01

    Full Text Available Au sein de l'ensemble des pays occidentaux, les
 gouvernements sont subitement en train de réinventer la figure du "criminel dangereux" et de prendre des mesures pour protéger leurs populations. En dépit du manque de preuves d'une augmentation des infractions sexuelles, les délinquants sexuels sont devenus des cibles en vogue de mesures incluant des régimes post-pénaux de détention et, à long terme, de fichage et de surveillance. Tout ceci fait partie intégrante de l'arsenal du nouvel État sécuritaire. Cet article examine le cas de l'Australie, où de telles lois ont surgi très rapidement, et montre comment les cours d'appel ont réagi aux dangers que ces lois elles-mêmes font courir aux libertés publiques élémentaires.All across the western world governments are suddenly reinventing the figure of the ‘dangerous offender’ and taking precautions to safeguard their populations. Despite there being little evidence of increasing sex crime, sex offenders have become popular targets of measures that include post-sentence continuing detention orders and long-term regimes of post-sentence registration and supervision. These are part of the armoury of a new security state. This paper examines the case of Australia, where such laws have sprung up very rapidly, and how the courts of appeal have responded to the dangers such laws themselves pose to basic civil liberties.

  9. Assisted suicide: Models of legal regulation in selected European countries and the case law of the European Court of Human Rights.

    Science.gov (United States)

    Grosse, Claudia; Grosse, Alexandra

    2015-10-01

    This paper presents three different models of the legal regulation of assisted suicide in European countries. First, the current legal regime governing assisted suicide in the Netherlands is described where both euthanasia and assisted suicide have been legalised. This section also includes some empirical data on euthanasia and assisted-suicide practices in the Netherlands, as well as a comparison with the current legal legislation in Belgium and Luxembourg. Next, Switzerland is presented as a country where euthanasia is punishable by law but assisted suicide is legally allowed, provided it is not carried out with selfish motives. This section also focuses on the assisted-suicide-related case law of the Swiss Federal Supreme Court and the European Court of Human Rights. Last, the current legal situation regarding assisted suicide in Austria and Germany is described. While the Austrian Penal Code explicitly prohibits assisted suicide, assistance with suicide is not specifically regulated by the German Penal Code. However, medical doctors are not allowed to assist suicides according to the professional codes of conduct drawn up by the German medical associations under the supervision of the health authorities.

  10. The rights of shareholders – basic principle of corporate governance by means of case-specific jurisprudence

    OpenAIRE

    Adrian Doru BÎGIOI; Cristina Elena DUMITRU

    2016-01-01

    Respecting shareholders’ rights represents one of the fundamental principles of corporate governance, underpinning the establishment of economic entities, as a form of association of individuals and / or legal entities in order to carry out profit-oriented activities. However, there are situations in which the management, the other shareholders, or even the authorities, do not respect certain shareholders’ rights, leading to a number of negative effects, such as the closing of companies. Bas...

  11. School Segregation under Color-Blind Jurisprudence: The Case of North Carolina. Working Papers Series. SAN08-02

    Science.gov (United States)

    Clotfelter, Charles T.; Ladd, Helen F.; Vigdor, Jacob L.

    2008-01-01

    Using detailed administrative data for the public K-12 schools of North Carolina, we measure racial segregation in the public schools of North Carolina. With data for the 2005/06 school year, we update previously published calculations that measure segregation in terms of unevenness in racial enrollment patterns both between schools and within…

  12. The Rule of Law and Civil Disobedience: The Case behind King's Letter from a Birmingham Jail

    Science.gov (United States)

    Kaplan, Howard

    2013-01-01

    Fifty years ago, the Reverend Dr. Martin Luther King Jr. wrote his "Letter from a Birmingham Jail." In exploring the story of the events behind the essay, and the Supreme Court case that resulted, "Walker v. Birmingham", 399 U.S. 307 (1967), educators will find a pedagogically powerful lens through which to review the seminal…

  13. Place Of Canon Law Of The Russian Empire In The System Io Humanitarian

    Directory of Open Access Journals (Sweden)

    Alexandra A. Dorskaya

    2014-12-01

    Full Text Available In the present article author examines place of canon law in the system of humanitarian sciences in the Russian Empire at the end of XVIII - early XX centuries. Author reveals interaction of canon law with philosophy, philology, jurisprudence. In particular, author shows influence of various philosophical schools on the development of the canon law science, value of foreign researches translation for the development of national science of canon law starting from the end of the XVIII century. It is found that all researchers in the field of canon law had special scientific works on philosophy. Interference of cannon law and theological science – dogmatic theology, moral theology, liturgy, church geography, chronology, statistics, history, archeology, pastoral theology is considered. In the article works of leading specialists in the field of canon law the second half of XIX - early XX centuries that were left as a significant legacy after the Archimandrite Gabriel, I.S. Berdnikova, N.A. Zaozerskii, I.M. Skvortsov and others are analyzed. In conclusion author shows complexity and urgency of the problem in the process of church (canon law study at the present stage, when there is some struggle between the secular and religious science.

  14. Chronique de jurisprudence. Chronique du règlement des différends de l'OMC (2006-2008)

    OpenAIRE

    Walid Abdelgawad; Clotilde Jourdain-Fortier; Isabelle Moine-Dupuis

    2008-01-01

    The purpose of this review is to highlight those among the numerous decisions rendered by the Dispute Settlement Body in 2006/2007, which seem to us to be especially interesting in that they allow to draw more general lessons about the orientation of international trade law under WTO rules. Perseverance by litigants alone shows how important the stakes in these cases are : Two out of the three cases commented upon here are compliance reports ! The difficulties of definitely settling high-stak...

  15. Fit for Purpose or Faulty Design? Analysis of the Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Legal Protection of Minorities

    Directory of Open Access Journals (Sweden)

    Anneleen Van Bossuyt

    2007-05-01

    Full Text Available This paper examines whether the European Court of Justice (ECJ, even in the absence of explicit competencies, could play a role in the creation of a European Union policy promoting the protection of minorities and thus preventing their social exclusion. Comparison is made with the jurisprudence of the European Court of Human Rights (ECtHR because of the cross-fertilisation between the two Courts. The author argues that there is a conspicuous absence in ECJ jurisprudence on the rights of minorities to their culture and identity, whereas the jurisprudence of the ECtHR in this regard is progressive. In contrast, the ECJ takes the fore when it comes to the protection of the linguistic rights of minorities. In conclusion, the author argues that the ECJ is not fit for purpose, but that to speak of a faulty design is taking a step too far.

  16. Private Arbitration of Incidental Public Law Issues

    DEFF Research Database (Denmark)

    Werlauff, Erik

    2009-01-01

    by arbitration, and where the award is nullifiable only if its findings are in violation of public policy, the ordre public. The article relies on UNCITRAL's Model Arbitration Law, the new Danish arbitration act (DAA), national European case law, and literature and case law of the European Court....

  17. Spain's ambivalent good governance and rule of law promotion (explaining the paradox in) the case of Algeria

    OpenAIRE

    Bustos, Rafael

    2007-01-01

    This paper attempts to explain why although Spain has now a consolidated democratic regime it is still weakly and ambiguously promoting democracy or even good-governance abroad. Recent events such as international terrorism has made even more urgent to concentrate on democratic assistance in Maghreb neighbouring countries. The concept of governance despite its shortcomings might offer an opportunity for non-intrusive democratic promotion. However, as the case of Algeria shows in the last 3 ye...

  18. Constitutional Law--Elective.

    Science.gov (United States)

    Gallagher, Joan; Wood, Robert J.

    The elective unit on Constitutional Law is intended for 11th and 12th grade students. The unit is designed around major course goals which are to develop those concepts whereby students recognize and understand the following three topic areas: 1) Role of the Federal Judicial Branch of Government, 2) Supreme Court Cases Involving the Three Branches…

  19. Evolution and the Law

    Science.gov (United States)

    Mayer, William V.

    1973-01-01

    Some court cases and legislative bills have been filed in states to legalize the use of the creationist view (of life forms on earth) in biology textbooks superseding the organic theory of evolution. The law has not yet accepted the religious viewpoint. (PS)

  20. SOME OBSERVATIONS ON THE EUROPEAN COURT OF JUSTICE’S POST-FRANCOVICH JURISPRUDENCE

    OpenAIRE

    Pavlović, Vladimir

    2008-01-01

    Summary: This article argues that the Francovich line of cases has revealed certain pro-integration leanings of the European Court of Justice. Following the Francovich judgment - considered reasonable by the vast majority of commentators - the Court has over time gone on to develop an expansive and sweeping doctrine of state liability to individuals with respect to the state's failure to implement directives - all this without much, if any, support in Community legislation. In developing this...

  1. Handbook of technology law. General funamentals, environment law, genetic engineering act, energy act, telecommunication act and media act, patent act, computer act. 2. ed.; Handbuch des Technikrechts. Allgemeine Grundlagen Umweltrecht, Gentechnikrecht, Energierecht, Telekommunikations- und Medienrecht, Patentrecht, Computerrecht

    Energy Technology Data Exchange (ETDEWEB)

    Schulte, Martin; Schroeder, Rainer (eds.) [Technische Univ. Dresden (Germany). Juristische Fakultaet

    2011-07-01

    On the boundaries between technology sciences, jurisprudence, social sciences and economic science the technology law proves as a cross-sectional area par excellence. The bases of the technology law are presented: individual, particularly important scopes of the technology law (appliance safety regulations, technology law and environment law, genetic engineering act, energy right, telecommunications law and media law, patent law, computer law, data security, legally binding telecooperation) are analyzed in detail. The manual contacts all lawyers who want to provide a first in-depth insight of this new field of law. [German] Im Grenzbereich von Technik-, Rechts-, Sozial- und Wirtschaftswissenschaften erweist sich das Technikrecht als Querschnittsmaterie par excellence. Die Grundlagen des Technikrechts werden dargestellt; einzelne, besonders wichtige Bereiche des Technikrechts (Geraetesicherheitsrecht, Technik und Umweltrecht, Gentechnikrecht, Energierecht, Telekommunikations- und Medienrecht, Patentrecht, Computerrecht, Datensicherheit, Rechtsverbindliche Telekooperation) werden eingehend analysiert. Das Handbuch wendet sich an alle in Wissenschaft und Praxis mit dem Technikrecht befassten Juristen, die sich einen ersten vertieften Einblick in dieses neue Rechtsgebiet verschaffen wollen. (orig.)

  2. Teaching of Administrative Law in the New Grade of Law

    Science.gov (United States)

    Domínguez Alonso, Patricia

    2012-01-01

    The teaching of Administrative Law in the new grade of law poses numerous challenges and opportunities in the new model of Bologna. It's really important work of research and students in class presentations. It is also important to motivate students to study the issues and cases brought before classes and to use virtual platforms to interact with…

  3. RETHINKING THE ROLE OF CLINICAL TRIAL DATA IN INTERNATIONAL INTELLECTUAL PROPERTY LAW: THE CASE FOR A PUBLIC GOODS APPROACH.

    Science.gov (United States)

    Reichman, Jerome H

    2009-01-01

    This article describes the growth and consequences of new intellectual property rights given to pharmaceutical developers, and it advocates treating clinical trials as a public good. Although the soaring cost of clinical trials is well known and discussed, too little attention is given to the underlying rationale for allowing drug developers to recoup their costs through the new intellectual property rights provided in multilateral, regional, and bilateral agreements. Known in the US as "market exclusivity" and in Europe as "data exclusivity," these rights prohibit would-be generic producers from obtaining regulatory approval based on the original producers' undisclosed test data. Market and data exclusivity is codified in US and European domestic law as well as the North American Free Trade Agreement (NAFTA) and, to a lesser degree, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Market and data exclusivity is binding an increasing number of developing countries via Free Trade Agreements (FTAs), which hinder developing countries from manufacturing generic drugs. At a minimum, negotiators should replace the norm of exclusive control over data with a liability rule, or take and pay rule, in which generic manufacturers can use original manufacturers' clinical trial data in exchange for reasonable compensation. A more fundamental solution requires questioning the status quo of proprietary clinical trial data. The conventional wisdom is that market and data exclusivity, and drug developers' consequent ability to limit competition from generics above and beyond patent protection, are a necessary incentive for drug developers to fund ever more expensive clinical trials. Clinical trial data, however, are public goods that will be undersupplied and over protected so long as private actors provide them. Moreover, manufacturers have an incentive to present clinical trial data so that they support regulatory approval at the expense of public

  4. RETHINKING THE ROLE OF CLINICAL TRIAL DATA IN INTERNATIONAL INTELLECTUAL PROPERTY LAW: THE CASE FOR A PUBLIC GOODS APPROACH

    Science.gov (United States)

    REICHMAN, JEROME H.

    2009-01-01

    This article describes the growth and consequences of new intellectual property rights given to pharmaceutical developers, and it advocates treating clinical trials as a public good. Although the soaring cost of clinical trials is well known and discussed, too little attention is given to the underlying rationale for allowing drug developers to recoup their costs through the new intellectual property rights provided in multilateral, regional, and bilateral agreements. Known in the US as “market exclusivity” and in Europe as “data exclusivity,” these rights prohibit would-be generic producers from obtaining regulatory approval based on the original producers’ undisclosed test data. Market and data exclusivity is codified in US and European domestic law as well as the North American Free Trade Agreement (NAFTA) and, to a lesser degree, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Market and data exclusivity is binding an increasing number of developing countries via Free Trade Agreements (FTAs), which hinder developing countries from manufacturing generic drugs. At a minimum, negotiators should replace the norm of exclusive control over data with a liability rule, or take and pay rule, in which generic manufacturers can use original manufacturers’ clinical trial data in exchange for reasonable compensation. A more fundamental solution requires questioning the status quo of proprietary clinical trial data. The conventional wisdom is that market and data exclusivity, and drug developers’ consequent ability to limit competition from generics above and beyond patent protection, are a necessary incentive for drug developers to fund ever more expensive clinical trials. Clinical trial data, however, are public goods that will be undersupplied and over protected so long as private actors provide them. Moreover, manufacturers have an incentive to present clinical trial data so that they support regulatory approval at the

  5. THE APPEAL IN THE INTEREST OF LAW IN THE DRAFTS OF THE NEW ROMANIAN PROCEDURE CODES

    Directory of Open Access Journals (Sweden)

    Dan LUPA CU

    2009-11-01

    Full Text Available * This paper has been prepared within the research project „Standardization of Judicial Practice and Harmonization With the ECHR Jurisprudence, a Mandatory Condition to Enforce Justice. Legislative Proposal to Grant Aconsistent Judicial Practice” (ID-1094 financed by the Romanian Minister of Education, Research, Youth and Sports.The unifying role of the High Court of Cassation and Justice in Romania is also accomplished – among other instruments – by mean of the appeal in the interest of law. Designed as a procedural instrument intended to contribute to the unitary interpretation and implementation of the law nationwide, it consolidates the position of leader of the judicial order held by the Supreme Court. The drafts of the new Procedure Codes – Civil and Criminal – substantially improve the regulations in this matter, but in a limited and non-unitary manner, as we will try to further demonstrate.

  6. The Role of the Ultima Ratio Principle in the Jurisprudence of the Norwegian Supreme Court

    Directory of Open Access Journals (Sweden)

    Thomas Frøberg

    2013-01-01

    Full Text Available The article examines how the ultima ratio principle can be used to analyze and criticize the argumentation of the courts in cases concerning the interpretation of criminal statutes. Este artículo analiza la forma en la que el principio de ultima ratio se puede utilizar para analizar y criticar los argumentos de los tribunales en casos relacionados con la interpretación de la legislación penal.DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=2200885  

  7. 法律案例在大学法律基础知识教学中的运用%The Application of College Fundamental Law in the Legal Case

    Institute of Scientific and Technical Information of China (English)

    罗苟新

    2012-01-01

    当前高校非法学专业普遍没有开设专业法律课程,对学生进行课堂法制教育的重任,就落在了公共课程《思想道德修养与法律基础》中关于法律基础知识部分的教学过程中。由于大学生对社会横向知识认知的局限和课本法律理论知识高度浓缩的特点,需要在大学法律基础知识教学中运用法律案例来弥补不足。%There is no professional law course for non-law majors, and these students can learn the knowledge of law from the class "Ideological and Moral Cultivation and Fundamental Law". Because of students' social cognitive limitations and highly-concentrated characteristics of textbook, teachers should apply law case to make up for inadequacy of the basic knowledge of law. The article talks about the teaching effect of the law case in the process of teaching.

  8. Conscientious objection to sexual and reproductive health services: international human rights standards and European law and practice.

    Science.gov (United States)

    Zampas, Christina; Andión-Ibañez, Ximena

    2012-06-01

    The practice of conscientious objection often arises in the area of individuals refusing to fulfil compulsory military service requirements and is based on the right to freedom of thought, conscience and religion as protected by national, international and regional human rights law. The practice of conscientious objection also arises in the field of health care, when individual health care providers or institutions refuse to provide certain health services based on religious, moral or philosophical objections. The use of conscientious objection by health care providers to reproductive health care services, including abortion, contraceptive prescriptions, and prenatal tests, among other services is a growing phenomena throughout Europe. However, despite recent progress from the European Court of Human Rights on this issue (RR v. Poland, 2011), countries and international and regional bodies generally have failed to comprehensively and effectively regulate this practice, denying many women reproductive health care services they are legally entitled to receive. The Italian Ministry of Health reported that in 2008 nearly 70% of gynaecologists in Italy refuse to perform abortions on moral grounds. It found that between 2003 and 2007 the number of gynaecologists invoking conscientious objection in their refusal to perform an abortion rose from 58.7 percent to 69.2 percent. Italy is not alone in Europe, for example, the practice is prevalent in Poland, Slovakia, and is growing in the United Kingdom. This article outlines the international and regional human rights obligations and medical standards on this issue, and highlights some of the main gaps in these standards. It illustrates how European countries regulate or fail to regulate conscientious objection and how these regulations are working in practice, including examples of jurisprudence from national level courts and cases before the European Court of Human Rights. Finally, the article will provide recommendations

  9. The Preliminary Ruling Decision in the Case of Google vs. Louis Vuitton Concerning the AdWord Service and its Impact on the Community Law

    Directory of Open Access Journals (Sweden)

    Tomáš Gongol

    2013-02-01

    Full Text Available The internet user after entering the keywords obtains two kinds of search results – natural and sponsored ones. The following paper deals with the issue of using keywords which correspond to trademarks registered by a third party for advertising purposes through internet search portals such as Google, Yahoo, Bing, Seznam, Centrum etc. (in principle web search portals. The objective of this article is to analyze decided cases dealing with the AdWords service issued by the Court of Justice of the European Union and compare them also with the attitude in similar disputes in the U.S. Within this knowledge it is necessary to determine the impact of these decisions on further national courts decisions of European Union member states. Moreover there is also legal impact on copyright law and responsibility of internet search engines deduced. The method of the analysis of courts decisions is used and the method of legal comparison is applied to different attitudes in similar cases. Where a third party uses a sign which is identical with the trademark in relation to goods or services identical with those for which the mark is registered, the trademark proprietor is allowed to prohibit such use if it is liable to affect one of the functions of the mark (particularly the function of indicating origin. Regarding to the liability of the Internet search engine itself, decisions of the courts in matters of Internet search engines in the European Union vary from state to state. Whereas the German courts tend to currently access the responsibility for the outcome of the search engines more freely, the French courts are often more stringent. Differently, we can say much more liberal, is the access of the U.S. courts to this issue. Preliminary ruling decision in case of Louis Vuitton Malletier SA vs. Google, Inc. and community practice in further cases follow similar (liberal decisions of the courts of the U.S.

  10. Abuse of rights in Community Law

    DEFF Research Database (Denmark)

    Sørensen, Karsten Engsig

    2006-01-01

    The article analyses the case law of the ECJ on abuse of rights with the aim to determine the extent to which EU law allows Member States and others to take measures to prevent abuse of Community rights......The article analyses the case law of the ECJ on abuse of rights with the aim to determine the extent to which EU law allows Member States and others to take measures to prevent abuse of Community rights...

  11. Adoption of Sustainable Practices And Certification ISO 14001: A Case Study in a Law and Legal Advice Firm

    Directory of Open Access Journals (Sweden)

    Letícia Eugênia Arenhart

    2013-12-01

    Full Text Available This article seeks to analyze how the company X Advocacy and Legal Consultancy can implant sustainable and quality practices to obtain the environmental certification ISO 14001. To achieve the objective, a qualitative and quantitative approach study was conducted. Regarding procedures, it consisted in a case study with a descriptive focus. From observation of the reality of X Advocacy and Legal Consultancy and its claims in relation to obtaining ISO 14001 certification, it is possible to propose as solution the implementation of a number of initiatives and sustainability actions in three pillars – social, environmental and economic. Suggestions were also developed about the dimensions of quality in order to formulate the basis for X Advocacy and Legal Consultancy environmental policy and possible implementation of ISO 14,001. 

  12. THEORETICAL AND JURISPRUDENTIAL ASPECTS CONCERNING THE CONSTITUTIONALITY OF THE COURT APPEAL ON POINTS OF LAW

    Directory of Open Access Journals (Sweden)

    Marius ANDREESCU

    2014-05-01

    Full Text Available The institution of the appeal on points of law has the role to ensure a unitary law interpretation and enforcing by the law courts. The legal nature of this procedure is determined not only by the civil and criminal normative dispositions that regulate it. In this study we bring arguments according to which this institution is of a constitutional nature, because according to the Constitution, the High Court of Cassation and Justice has the attribution to ensure the unitary interpretation of the law by the law courts. Thus are analyzed the constitutional nature consequences of this institution, the limits of compulsoriness of law interpretations given by the Supreme Court through the decisions ruled on this procedure, and also the relationship between the decisions of the Constitutional Court, respectively the decisions of the High Court of Cassation and Justice given for resolving the appeals on points of law. The recent jurisprudence of the Constitutional Court reveals new aspects regarding the possibility to verify the constitutionality of the decisions given in this matter.

  13. THEORETICAL AND JURISPRUDENTIAL ASPECTS CONCERNING THE CONSTITUTIONALITY OF THE COURT APPEAL ON POINTS OF LAW

    Directory of Open Access Journals (Sweden)

    Marius ANDREESCU

    2014-06-01

    Full Text Available The institution of the appeal on points of law has the role to ensure a unitary law interpretation and enforcing by the law courts. The legal nature of this procedure is determined not only by the civil and criminal normative dispositions that regulate it. In this study we bring arguments according to which this institution is of a constitutional nature, because according to the Constitution, the High Court of Cassation and Justice has the attribution to ensure the unitary interpretation of the law by the law courts. Thus are analysed the constitutional nature consequences of this institution, the limits of compulsoriness of law interpretations given by the Supreme Court through the decisions ruled on this procedure, and also the relationship between the decisions of the Constitutional Court, respectively the decisions of the High Court of Cassation and Justice given for resolving the appeals on points of law. The recent jurisprudence of the Constitutional Court reveals new aspects regarding the possibility to verify the constitutionality of the decisions given in this matter.

  14. Criminal Responsibility of Minors in the New Criminal Code Offences (Law No. 286/2009

    Directory of Open Access Journals (Sweden)

    Alexandru Boroi

    2011-05-01

    Full Text Available The elaboration and adoption of a new penal code represents a decisive moment in the evolution of any state laws. The decision to proceed in developing a new Criminal Code was not a simple demonstration of the political will, but represented a corollary matched of economic and social development, also to the doctrine and jurisprudence and it had as base a series of gaps existing in current regulation. Legislative changes concerning the minority represents one of the focal points of the reform proposed by the new Criminal Code (Law no. 286/2009. One of the major changes contemplated in this regard is the complete surrender to the punishment applicable to juveniles who are criminally responsible, in favor of educational measures. The model that inspired the current legislation is the Organic Law no. 5 / 2000 regarding the criminal liability of minors in Spain (as amended by Organic Law no. 8 / 2006, but have considered the provisions of French law (Order of 2 February 1945 with subsequent changes, German (Law juvenile courts in 1953 with subsequent amendments and the Austrian law (Juvenile Justice Act 1988.

  15. Technical rules in law

    International Nuclear Information System (INIS)

    An important source of knowledge for technical experts is the state of the art reflected by catalogues of technical rules. Technical rules may also achieve importance in law due to a legal transformation standard. Here, rigid and flexible reference are controversial with regard to their admissibility from the point of view of constitutional law. In case of a divergence from the generally accepted technical rules, it is assumed - refutably - that the necessary care had not been taken. Technical rules are one out of several sources of information; they have no normative effect. This may result in a duty of anyone applying them to review the state of technology himself. (orig.)

  16. Around the circular law

    CERN Document Server

    Bordenave, Charles

    2011-01-01

    These expository notes are centered around the circular law theorem, which states that the empirical spectral distribution of a n \\times n random matrix with i.i.d. entries of variance 1/n tends to the uniform law on the unit disc of the complex plane as the dimension n tends to infinity. This phenomenon is the non-Hermitian counterpart of the semi circular limit for Wigner random Hermitian matrices, and the quarter circular limit for Marchenko-Pastur random covariance matrices. We present a proof in a Gaussian case, due to Silverstein, based on a formula by Ginibre, and a proof of the universal case by revisiting the approach of Tao and Vu, based on the Hermitization of Girko, the logarithmic potential, and the control of the small singular values. Beyond the finite variance model, we also consider the case where the entries have heavy tails, by using the objective method of Aldous and Steele borrowed from randomized combinatorial optimization. The limiting law is then no longer the circular law and is relat...

  17. 南海仲裁案的国际法分析%International Law Analysis of the South China Sea Arbitration Case

    Institute of Scientific and Technical Information of China (English)

    郑海麟

    2016-01-01

    In the South China Sea arbitration case, Philippines attempts to use“exclusive economic zone”in the United Nations Convention on the Law of the Sea to deny China�s claim of historic rights in “Nine⁃dash Line” of the South China Sea, which no doubt is a violation of China�s territorial authority and its sov⁃ereignty. This is essentially posing challenge to the international law system after World War II by using the marine law system established in 1982, to achieve the purpose of redistribution of marine resources in the South China Sea. If reallocation of marine regional resources are carried out in this manner and“a new or⁃der of the ocean” established on this basis, then not only in the South China Sea, but the whole world will be reshuffled. The result is likely to lead to regional conflicts and even new world war.%在南海仲裁案中,菲律宾试图以《联合国海洋法公约》中“专属经济区”主权权利否定中国主张的南海“九段线”内的“历史性权利”,毫无疑问是对中国的属地权威及其主权权利的侵犯。这实质上是以1982年建立的海洋法制度挑战“二战”后的国际法条约体系,以求达到对南海区域海洋资源重新分配之目的。如按这种方式进行海洋区域资源的重新分配并以此为基准去建立海洋“新秩序”,那么不仅在南海,恐怕整个世界都要重新洗牌,其结果极有可能引发区域冲突甚至世界大战。

  18. National Courts and EU Law

    DEFF Research Database (Denmark)

    rights in the area of freedom, security and justice. The analysis of each is enriched through diverse research methods such as case-law analysis, citation network analysis, interviews, surveys and statistics. With its new legal and empirical assessment covering the newest member states of the EU......, National Courts and EU Law will hold strong appeal for scholars and students in the fields of EU law, social sciences and humanities. It will also be of use to legal practitioners interested in the issue of judicial application of EU law....

  19. The Law Of Environmental Preservation

    International Nuclear Information System (INIS)

    This book deals with preservation regulation on environment, which includes the meaning of environmental law, foundation of environmental law and development, characteristic of the law, the right of environment, the method and the case of lawmaking of environment, formation of environmental law in Korea, organization of administration, explanation of environmental regulation with term and definition, exclusion of application, safety of nature, supervision of air and water, discharge facilities and prevention facility, air pollution, discharge facility business, management of industrial waste substance and grievance mediation and compensation for the lost.

  20. Recent publications on environmental law

    International Nuclear Information System (INIS)

    The bibliography contains 1235 references to publications covering the following subject fields: general environmental law; environmental law in relation to constitutional law, administrative law, procedural law, revenue law, criminal law, private law, industrial law; law of regional development; nature conservation law; law on water protection; waste management law; law on protection against harmful effects on the environment; atomic energy law and radiation protection law; law of the power industry and the mining industry; laws and regulations on hazardous material and environmental hygiene. (HP)

  1. Recent publications on environmental law

    International Nuclear Information System (INIS)

    The bibliography contains references to publications covering the following subject fields: General environmental law; environmental law in relation to constitutional law, administrative law, procedural law, revenue law, criminal law, private law, industrial law; law of regional development; nature conservation law; law on water protection; waste management law; law on protection against harmful effects on the environment; atomic energy law and radiation protection law; law of the power industry and the mining industry; laws and regulations on hazardous material and environmental hygiene. (orig.)

  2. Analysis About China's Thrity-Year Commercial Law & Commercial Jurisprudence%中国商法及商法学三十年

    Institute of Scientific and Technical Information of China (English)

    华中师范大学商法研究中心

    2009-01-01

    1978年以后中国的商法及商法学从空白到快速发展,在立法、学术研究、教学等方面均取得了空前的成就,逐渐形成了一个具有中国特色的商法体系和独立的商法学部门,但仍然存在着一些不容忽视的问题,值得我们认真地回顾与总结.

  3. 克格尔和他的国际私法"利益论"%Kegel and his Jurisprudence of Interests in International Private Law

    Institute of Scientific and Technical Information of China (English)

    邹国勇

    2004-01-01

    @@ 20世纪50到70年代,美国国际私法学者掀起了一场"冲突法革命",对传统的国际私法理论和方法进行了猛烈抨击,并各自提出了独树一帜的学说,主要有凯弗斯(Cavers)的"优先选择原则"、柯里(Brainerd Currie)的"政府利益分析说"、埃伦茨威格(Albert A.Ehrenzweig)的"法院地法优先说"、里斯(W.L.M.Reese)的"最密切联系说"等.同时法国的巴迪福尔(Henri Batiffol)和德国的克格尔(Gerhard Kegel)等欧洲学者也提出了一些颇有影响的国际私法理论.本文拟对克格尔的国际私法"利益论"做一初步探讨,以抛砖引玉.

  4. THE INTERFERENCE OF EUROPEAN UNION LAW WITH PUBLIC INTERNATIONAL LAW

    Directory of Open Access Journals (Sweden)

    ROXANA-MARIANA POPESCU

    2011-04-01

    Full Text Available The European Union Law is an unique legal phenomenon developed in the process of European integration within the framework of the European Communities and the European Union; a result of the implementation of the supranational authority of the European institutions. The European Union law is a specific legal system having independent sources and principles that developed at the border-line of international law and domestic law of the EU’s Member States. The authonomy of the European Union law is affirmed by a case-law of the Court of Justice of the European Union.The European Union has its own legal order which is separate from international law and forms an integral part of the legal systems of the Member States. The legal order of the Union is founded on various different sources of law. The different nature of these sources has imposed a hierarchy among them. At the pinnacle of this hierarchy we find primary law, represented by the Treaties and general legal principles, followed by international treaties concluded by the Union and secondary law founded on the Treaties.

  5. 民族院校《法理学》教学思考%Thought on jurisprudence teaching in ethnic universities

    Institute of Scientific and Technical Information of China (English)

    闻立军

    2013-01-01

    At present, jurisprudence teaching in ethnic universities face some trouble because of he nature of curriculum, the quality of students and other factors."Jurisprudence"teachers in ethnic universities should adjust the teaching content according to the actual situation of students, guiding them in the learning methods so that students have a good harvest in the acquisition of knowledge, ability, spirit.%当下,民族院校《法理学》教学因课程性质、学生素质等原因面临一定困境。民族院校《法理学》任课教师应根据实际情况在教学内容方面进行调整,在学习方法上对学生加以指导,使学生在知识习得、能力培养、精神塑造方面都有所收获。

  6. Policy and jurisprudence aspects of climate adaptation; Beleids- en rechtswetenschappelijke aspecten van klimaatadaptatie

    Energy Technology Data Exchange (ETDEWEB)

    Driessen, P.P.J.; De Gier, A.A.J.; Van Rijswick, H.F.M.W.; Schueler, B.J. [Universiteit Utrecht, Utrecht (Netherlands); Meijerink, S.V. [Radboud Universiteit Nijmegen, Nijmegen (Netherlands); Pot, W.D.; Termeer, C.J.A.M. [Wageningen UR, Wageningen (Netherlands); Reudink, M.A.; Tennekes, J. [Planbureau voor de Leefomgeving PBL, Den Haag (Netherlands)

    2011-07-15

    Questions about the desirable and the most appropriate measures for adaptation of Dutch society to climate change are dealt with. By means of a test one can answer the question whether a proposed measure of climate adaptation is desirable and successful. The first part (A) contains an introductory essay (Towards a climate proof Netherlands, the institutional context). The second part (B) contains the description of the four key elements: Is it appropriate? Is it allowed? Does it fit in? Is it adaptive? This 'four-step test; is applied to three cases related to climate adaptation. [Dutch] Vragen over de wenselijke en de meest geschikte maatregelen voor adaptatie van de Nederlandse samenleving aan de klimaatverandering worden behandeld vanuit een geintegreerde wetenschappelijke benadering. Met behulp van een toets kan men de vraag beantwoorden of een voorgenomen maatregel van klimaatadaptatie wenselijk en succesvol kan zijn. Het eerste deel (A) bevat een inleidend essay (Op weg naar een klimaatbestendig Nederland, de institutionele context). Het tweede deel (B) bevat de beschrijving van de vier elementen van de toets: Hoort het? Mag het? Past het? Is het adaptief? Deze 'Vier-stappentoets' wordt toegepast op een drietal casussen die betrekking hebben op klimaatadaptatie.

  7. Fractal probability laws.

    Science.gov (United States)

    Eliazar, Iddo; Klafter, Joseph

    2008-06-01

    We explore six classes of fractal probability laws defined on the positive half-line: Weibull, Frechét, Lévy, hyper Pareto, hyper beta, and hyper shot noise. Each of these classes admits a unique statistical power-law structure, and is uniquely associated with a certain operation of renormalization. All six classes turn out to be one-dimensional projections of underlying Poisson processes which, in turn, are the unique fixed points of Poissonian renormalizations. The first three classes correspond to linear Poissonian renormalizations and are intimately related to extreme value theory (Weibull, Frechét) and to the central limit theorem (Lévy). The other three classes correspond to nonlinear Poissonian renormalizations. Pareto's law--commonly perceived as the "universal fractal probability distribution"--is merely a special case of the hyper Pareto class.

  8. On Methodology and Nature of Theory of Law——from the perspective of Analytical Jurisprudence%论法律理论的方法及其性质——基于分析法理学的视角

    Institute of Scientific and Technical Information of China (English)

    张超

    2012-01-01

    It is essential to clarify misunderstandings as to theory of law before undertaking detailed stud- ies so as to establish proper methodology and explore nature of theory of law. From the perspective of analytical jurisprudence, the conceptual analysis of law equals that of nature of law. This methodology is grounded on the following four aspects. Firstly, the conceptual analysis of law is not semantic analysis. Secondly, conceptual analysis is to explore the intrinsic feature of law and to study the typology of law with an institutional approach, and in essence a self- understanding of legal concept. Thirdly, a qualified theory of law can only be evalu- ative or justifiable. Fourthly, with regard to theory of law, the universality should be based on rather than in- compatible with the locality.%在从事具体的法律理论工作之前,我们必须澄清围绕在法律理论四周的种种误解,确立恰当的研究方法以及厘清法律理论的性质。从分析法理学的视角来看,法律的概念分析就是对法律之本质的探究。分析法理学这一方法论的基本论题需从以下四个方面来理解:一是法律的概念分析不是对法律概念的语义分析;二是概念分析是对法律之必然属性的探究,是对法律这种特定制度性类型的探究,从根本上讲,这是对属于我们的法律概念之自我理解;三是一种合格的法律理论只能是评价性或证立性的;四是法律理论的普遍性不仅不排斥地方性,而且要以地方性为出发点。

  9. Rebels without a Cause? Civil disobedience, Conscientious Objection and the Art of Argumentation in the Case Law of the European Court of Human Rights

    Directory of Open Access Journals (Sweden)

    Kati Nieminen

    2015-12-01

    Full Text Available Civil disobedience is often seen as a political statement whilst conscientious objection is understood as a private matter. This article discusses real-life acts of disobedience in the case law of the European Court of Human Rights. The emphasis is on the argumentative strategies by which the potential for profound social change can be neutralised in legal argumentation. The cases discussed here concentrate on Turkey and represent acts of conscientious objection and civil disobedience. The main finding is that in legal argumentation there are two strategies for neutralising the potential for change: first, labelling the disobedient act as a private matter in order to deprive it of its political message, or second, labelling the act as violent, undemocratic behaviour so that it can be disregarded. The article shows that the law is unable, and perhaps unwilling, to fully acknowledge the political claims of disobedience. A menudo se percibe la desobediencia civil como una declaración política, mientras que la objeción de conciencia se entiende como un asunto privado. Este artículo analiza actos de desobediencia de la vida real a través de la jurisprudencia del Tribunal Europeo de Derechos Humanos. Se enfatizan las estrategias argumentativas por las que se puede neutralizar el potencial de cambio social profundo a través de la argumentación jurídica. Los casos analizados aquí se centran en Turquía y representan actos de objeción de conciencia y desobediencia civil. La conclusión principal es que en la argumentación jurídica existen dos estrategias para neutralizar el potencial de cambio: en primer lugar, etiquetar el acto de desobediencia como un asunto privado, para privarlo de su mensaje político, en segundo lugar, etiquetar el acto como un comportamiento violento y no democrático, para que pueda ser ignorado. El artículo demuestra que el derecho es incapaz de, y tal vez reticente a, reconocer totalmente las reivindicaciones pol

  10. Judicial Requirements for School Finance and Property Tax Redesign: The Rapidly Evolving Case Law. Proceedings of National Tax Association and Fund for Public Policy Research Seminar on Financing the Seventies. (Boston, Massachusetts, April 12-14, 1972.)

    Science.gov (United States)

    Schoettle, Ferdinand P.

    1972-01-01

    Discusses recent court decisions striking down State school finance systems as being in violation of the equal protection clause. Part one summarizes the relevant constitutional law as well as holdings and rationales of the cases. Part two considers alternative schemes that utilize the property tax as part of the system for funding public schools.…

  11. Criminal law

    International Nuclear Information System (INIS)

    Facts concerning the application of atomic energy are presented and those aspects which should be under tutelage, the nature and guilt of the nuclear offenses and the agent's peril are presented. The need of a specific chapter in criminal law with adequate legislation concerning the principles of atomic energy is inferred. The basis for the future elaboration this legislation are fixed. (A.L.S.L.)

  12. [Uterine subrogation: medical and legal aspects of the first legally supported case in Argentina].

    Science.gov (United States)

    Urquiza, M Fernanda; Carretero, Inés; Quaini, Fabiana Marcela; Inciarte, Florencia; Pasqualini, R Agustín; Pasqualini, R Sergio

    2014-01-01

    A woman aged 38 was referred to this center for surrogacy treatment, after subtotal ablation of her uterus due to a severe postpartum hemorrhage. Her hormonal profiles and ovarian structure were normal. The husband proved fertile and semen analysis was normal. The carrier, a woman 39 years old, fertile with two children of her own, and a long bonding friendship with the patient. After hormonal stimulation with gonadotropins and GnRH antagonist, six mature oocytes were obtained. These originated four embryos after in vitro fertilization, three of which were transferred to the carrier, achieving a singleton pregnancy which led to the birth of a normal child, now more than a year old. A lawsuit was filed after birth requesting the baby be registered with the biological parents name. The judge granted the request based on evidence and testimonies provided, international jurisprudence history and specification in Article 19 of the Argentine Constitution: "No inhabitant of the Nation shall be obliged to do what the law does not demand .nor be deprived of what it does not prohibit". This is an almost ideal example of the proceedings in a case of subrogation. However, we must always bear in mind the fact that in our country there is as yet no regulatory framework for these treatments, therefore there is a high probability of conflict. PMID:24918676

  13. Law as a Tool for Preventing Chronic Diseases: Expanding the Spectrum of Effective Public Health Strategies

    Directory of Open Access Journals (Sweden)

    George A. Mensah

    2004-04-01

    Full Text Available In part one of this 2-part series, we reviewed the important roles that laws have played in public health and provided examples of specific laws and their effectiveness in supporting public health interventions (1. We suggested that conceptual legal frameworks for systematically applying law to preventing and controlling chronic diseases have not been fully recognized and we provided the basic elements of a conceptual legal framework. In part 2 of this series, we first provide an overview of U.S. jurisprudence, describe the legal mechanisms, remedies, and tools for applying law to public health, and summarize the jurisdictional levels at which laws, mechanisms, remedies, and tools operate. We then identify the potential contours for legal frameworks of varying complexity and scope by offering examples of legal frameworks in public health practice. This paper also outlines a plan for increasing the capacity within the Centers for Disease Control and Prevention (CDC for developing legal frameworks and expanding guidance on using legal tools for preventing and controlling chronic diseases. Finally, we describe resources for building or enhancing the capacity to use law as a tool for preventing diseases, injuries, and disabilities at the local level.

  14. On the Law Spirit in Song Dynasty%宋代法意之殇

    Institute of Scientific and Technical Information of China (English)

    刘笃才

    2012-01-01

    Law spirit is an important concept in ancient legal system. The concept of law spirit was paid atten- tion to very much in Song dynasty. It played an important role to ease the conflict of law and human feeling, achieving the balance of law and human feeling. The concept of law spirit provided the chance for the development of jurisprudence in Song dynasty, but ignored by posterity. The reason of disappearing of the concept of law spirit is worth thinking.%法意是古代法制中的一个重要概念。宋代是法意这一概念特别受到重视的历史时期,它对于缓和司法过程中法律与人情的冲突,达到法律与人情的平衡,起了重要作用。在宋代,法意概念本来为法学的发展提供了契机,却没有被后人所把握,其湮没无闻的原因令人深思。

  15. Case Law: - Canada: Criminal Court decision respecting attempted export of nuclear-related dual use items to Iran: Her Majesty the Queen vs Yadegari (2010); - Czech Republic: Supreme Administrative Court on the legal status of CEZ (2010)

    International Nuclear Information System (INIS)

    Case law 1: Canada - Criminal Court decision respecting attempted export of nuclear-related dual use items to Iran: Her Majesty the Queen vs Yadegari (2010). This case concerns a recent, successful prosecution that was undertaken before the Ontario Court of Justice relating to violations of export control legislation in Canada, nuclear regulatory legislation, customs law, criminal law, as well as Canadian law implementing UN Security Council resolutions concerning Iran. The convictions that have been registered in this case, notwithstanding the fact that the decision is currently under appeal,2 demonstrate the importance of a functioning export control regime and effective counter-proliferation strategy. The case represents the first conviction for a regulatory offense under the Nuclear Safety and Control Act,3 in force since 2000, and Mr. Yadegari is the first Canadian to be convicted under the United Nations Act, Canada's legislation by which it implements UN resolutions. Case law 2: Czech Republic - Supreme Administrative Court on the legal status of CEZ (2010). The Supreme Administrative Court in its decision of 6 October 20098 ruled on whether CEZ, a.s., which is the operator of nuclear installations at the Temelin and Dukovany sites in the Czech Republic, is governed by the Act on Free Access to Information. The court stated that the rules laid down in the Act on Free Access to Information, also apply to CEZ which is considered as a 'public institution'. The following reasons led the court to this interpretation: first, CEZ was established by decision of the state in the course of the privatisation process. Secondly, the company is effectively controlled by the state, which is still its majority owner and the profits of the company also compose a portion of state budget revenues. Finally, there is a public interest served in the function of the company

  16. 法学研究如何学术--学术史方法的重申%How to Make the Jurisprudence Study Academic ---Reiteration of Methodology of Academic History

    Institute of Scientific and Technical Information of China (English)

    魏建国

    2014-01-01

    Since currently the low academic level of jurisprudence study lies in the researchers of juris-prudence , the focus should be converted to the academic study itself .Considering the methodology of academ-ic history is the fundamental method , the low academic level of jurisprudence study in China is caused by the lack of methodology of academic history study , which has resulted in that the academic jurisprudence studies cannot be distinguished from non -academic ones;jurisprudence fails to be established as an independent dis-cipline;the chaotic citation in jurisprudence study cannot function as academic evaluation ;and the academic tradition to focus on studies of western countries has become a pervasive inclination .Therefore , the academic level of jurisprudence study in China is suggested to be improved by the following measures , such as to proper-ly separate practical standards from academic standards;to establish academic independence and independent standards of academic evaluation;to better understand the significance of academic feature; to enhance con-ception of academic history; to improve academic norms and to promote academic traditions of jurisprudence with China ’ s own characteristics .It should be reiterated that the academic feature and methodology of aca-demic history are not higher requirements for jurisprudence study , rather , they function as a reminders that the jurisprudence study should start with basic research methods before exploring other measures .%当下中国法学研究学术性不强的原因主要在于法学研究者自身,因此需要将视线转向学术本身。基于学术史方法是学术最基本方法的判断,可以发现中国法学研究学术性不强的原因在于学术史方法的缺失,这使得中国法学研究中的学术性与非学术性混淆不清;法学难以确立自己学科的独立地位;法学研究中引证混乱并难以发挥学术评价功能;法学研究中学术传统

  17. A Relationship between Lotka's Law, Bradford's Law, and Zipf's Law.

    Science.gov (United States)

    Chen, Ye-Sho; Leimkuhler, Ferdinand F.

    1986-01-01

    A common functional relationship among Lotka's law, Bradford's law, and Zipf's law is derived. The proof takes explicit account of the sequences of observed values of the variables by means of an index. This approach results in a more realistic and precise formulation of each law. (Author/EM)

  18. 合乎时代主题的理论创新 --评《国际法与国内法关系的法理学思考》%Theoretical Creativity Accordant with the Theme of the Times Comment on the article: A Jurisprudential Pensive Research on the Relat ionship Between International Law and National Law

    Institute of Scientific and Technical Information of China (English)

    孙笑侠

    2001-01-01

    The article, A Jurisprudence Pensive Research on the Relationship Between International Law and National Law written by professor Lilong and associate professor Wang Xi-gen explores into the relationship between International Law and National Law in the light of jurisprudential theory. In addition, the two authors also put forth theoretical innovation while fully understanding the theme of times that the international relationship: Peace and development.%李龙教授与汪习根副教授的《国际法与国内法关系的法理学思考》一文从法理学的高度探讨了国际法与国内法的关系,作者准确地把握了当今国际关系的和平与发展的主题,在把握了时代脉膊的同时进行了理论创新。

  19. The generalized distributive law

    OpenAIRE

    Aji, Srinivas M.; McEliece, Robert J.

    2000-01-01

    We discuss a general message passing algorithm, which we call the generalized distributive law (GDL). The GDL is a synthesis of the work of many authors in information theory, digital communications, signal processing, statistics, and artificial intelligence. It includes as special cases the Baum-Welch algorithm, the fast Fourier transform (FFT) on any finite Abelian group, the Gallager-Tanner-Wiberg decoding algorithm, Viterbi's algorithm, the BCJR algorithm, Pearl's “belief propagation” alg...

  20. Case Study of Apple, Inc. for Business Law Students: How Apple's Business Model Controls Digital Content through Legal and Technological Means

    Science.gov (United States)

    Reder, Margo E. K.

    2009-01-01

    This article describes a six-week long exercise that incorporates a dynamic learning approach into an e-commerce or Internet technology business law elective course; the exercise pursues an entrepreneurial approach to the use of an appropriate business model by emphasizing the interaction between technology, business, and law. This active learning…

  1. The application of just administrative action in the South African environmental governance sphere: an analysis of some contemporary thoughts and recent jurisprudence

    Directory of Open Access Journals (Sweden)

    LJ Kotzé

    2004-10-01

    Full Text Available Administrative law, and more specifically administrative justice, is becoming increasingly important in the context of environmental law. The enforcement of environmental law depends to a large extent on administrative decision-making by environmental authorities. A developer, who wishes to undertake a development activity that may have a detrimental effect on the environment, will require an environmental authorization that must be granted by the relevant environmental authority. There may be certain instance where the application for such an authorization is unduly delayed, or where there are mala fides on the part of the relevant authority. This may inevitably infringe the right of the developer to, inter alia, administrative justice. It is argued in this article that the developer has certain constitutional rights which can be invoked when dealing with environmental authorities. Hence, the discussion in this article focuses on the relationship between administrative justice and environmental governance; the constitutional rights of the developer; and recent case law that supports the proposal that the developer has legal recourse when her right to administrative justice has been infringed.

  2. Labour's law?

    OpenAIRE

    Jahn, Elke J.; Wagner, Thomas

    2001-01-01

    A cross section analysis of 23 OECD members shows that there is an „antagonistic” relationship between the legal protection of investor interests on the one hand and labour interests on the other: the stronger the legal protection of investor rights in a country, the less developed are the individual and collective rights of labour and vice versa. A main cause for a country's position with respect to this trade off is its type of legal system, specifically whether it belongs to the common law...

  3. 高职院校经济类专业经济法案例教学探析%The exploration on case teaching in economic law curriculum for economics specialty in higher vocational college

    Institute of Scientific and Technical Information of China (English)

    陈迎

    2012-01-01

    Case teaching is one of the common teaching methods in economic law curriculum for econom-ics specialty in higher vocational college. In order to improve the efficiency of case teaching, this paper analyzed the problems and improvement of teaching methods in economic law case teaching.%在高职院校经济类专业的经济法课程教学中,案例教学是普遍采用的教学方法之一:为提高经济法案例教学的效果,本文分析了经济法案例教学中存在的问题,提出了改进方法。

  4. Restrained Integration of European Case Reports in Danish Information Systems and Culture

    DEFF Research Database (Denmark)

    Gøtze, Michael; Olsen, Henrik Palmer

    2011-01-01

    Danish Publication of European Case Law, EU Law, European Human Rights Law, Selective Danish Information Systems, Legal Knowledge......Danish Publication of European Case Law, EU Law, European Human Rights Law, Selective Danish Information Systems, Legal Knowledge...

  5. Notas e reflexões sobre a jurisprudência internacional em matéria ambiental: a participação de indivíduos e organizações não governamentais Notes and reflections on environmental international jurisprudence: the participation of individuals and non-governmental organizations

    OpenAIRE

    Fúlvio Eduardo Fonseca

    2010-01-01

    O objetivo do artigo é oferecer uma sistematização da jurisprudência internacional relevante envolvendo onGs e meio ambiente. Para isso, buscou-se mapear os casos exemplares levados às instâncias internacionais, como forma de ilustrar o potencial e as limitações da estratégia de se recorrer ao direito internacional, levada a efeito por um crescente número de indivíduos e organizações. A pesquisa considerou as sentenças e decisões de órgãos judiciais (Corte Interamericana de Direitos Humanos, ...

  6. Recuperação inteligente de jurisprudência: uma avaliação do raciocínio baseado em casos aplicado a recuperação de jurisprudências no Tribunal Regional Eleitoral do Distrito Federal

    Directory of Open Access Journals (Sweden)

    Symball Rufino de Oliveira

    2011-04-01

    Full Text Available Trata-se de uma pesquisa cujo objeto é avaliar a medida de precisão de um sistema de recuperação de informação jurídica (jurisprudência que utiliza técnica de inteligência artificial conhecida como Raciocínio Baseado em Casos (RBC. Nesse modelo as jurisprudências são organizadas sob a forma de casos jurídicos concretos. O raciocínio baseado em casos tem como princípio a idéias de que um caso jurídico passado pode ser útil para resolver um problema atual, desde que exista entre eles algum grau de semelhança. Para estabelecer semelhanças entre casos atuais e passados o modelo estudado propõe o uso de cálculo de similaridade que é realizado com base na comparação de índices temáticos obtidos a partir do processo de indexação realizado por especialistas utilizando-se como apoio um tesauro jurídico. Esta pesquisa utiliza como universo as jurisprudências produzidas pelo Tribunal Regional Eleitoral do Distrito Federal. A amostra foi composta, considerando o recorte dado à pesquisa, por jurisprudências eleitorais produzidas nas eleições gerais de 2006 no Distrito Federal. Para realizar a avaliação do modelo, foi construído um protótipo do sistema de recuperação de informação baseado em casos. Em seguida, avaliou-se o protótipo quanto ao grau de precisão obtido no resultado de um conjunto de buscas. O método adotado para as avaliações foi o mesmo utilizado na Text REtrieval Conference (TREC de 2007, tarefa Legal Track. Após a coleta dos dados foi elaborado um relatório discutindo a possibilidade do sistema de recuperação de informação baseado em casos ser considerado um paradigma para a recuperação de informação jurídica eleitoral.

  7. School Law.

    Science.gov (United States)

    Splitt, David A.

    1987-01-01

    Summarizes a variety of religious issues before United States courts, including two religion-in-the-schools cases in New Jersey and Georgia and two New York cases involving public assistance of private schools. Discusses a wrongful death lawsuit in Connecticut concerning a teenage suicide. (MLH)

  8. "Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities

    Directory of Open Access Journals (Sweden)

    Matome M Ratiba

    2015-04-01

    Full Text Available Throughout the years cultural communities across the world have borne witness to many unending attempts at the destruction of their places of worship. This endemic problem has arisen in a number of places, such as in the USA and in most of the world's former colonies. Having been colonised, South African cultural communities have experienced the same threats to their various sacred sites. This article seeks to argue and demonstrate that cultural communities in South Africa stand to benefit from the properly construed and rich earth jurisprudence arising out of the courtroom experiences of some of the cultural communities identified elsewhere in the world. It also proposes several arguments peculiar to South Africa which could be advanced by cultural communities seeking to protect their sacred lands.

  9. On the Effect and Application of Law Related Litigation Petition Cases%涉法涉诉信访案件终结的效力及其适用∗

    Institute of Scientific and Technical Information of China (English)

    杨文杰

    2016-01-01

    涉法涉诉信访案件终结可分为自愿性终结信访程序和强制性终结信访程序两种。涉法涉诉信访案件终结的效力,就是接处信访案件的有关国家机关依照法定条件和程序作出信访案件终结结论后所产生的法律后果。信访案件终结的效力有,消灭涉法涉诉信访实体法律关系的效力;消灭涉法涉诉信访案件职能部门接处信访案件的职权和职责的效力;消灭涉法涉诉案件信访行为合法性效力;引起行政处罚法律关系产生的效力;引起刑事法律关系产生的效力。适用信访案件终结效力制度应注意,处理实体性信访诉求应该坚持法治原则,区分困难照顾、帮扶、救济与法律责任的关系;严格执行信访案件终结制度;注意区分依法行使信访权和违法信访性质的不同;注意合法信访与维稳之间的关系;严格依法惩处违法信访行为。%s:In the cases Involved law related litigation there are voluntary end of the petition pro-cedures and mandatory end of the petition procedures.The validity of the termination of the complaint case involving the law,is the legal consequences arising from the conclusion of the relevant state or-gans in the case of law related litigation to the conclusion of the conclusion of the case of the complaint by the state organ in accordance with the statutory conditions and procedures.Petition cases,at the end of validity,the eradication of the validity of law related litigation of substantive legal relationship;destroy law related petition cases functions meet the validity of the powers and duties of the office of complaint cases;destroy law related litigation petition cases behavior legal effect;cause effect pro-duced by the legal relation of administrative punishment;cause effects of criminal legal relationship. Petition cases end validity system should pay attention to and processing entity of complaint should adhere to the

  10. Law, Community and Ultima Ratio in Transnational Law

    OpenAIRE

    Massimo Fichera

    2013-01-01

    The paper aims to examine the concept of transnational law and the way market forces affect the notion of community at the transnational level. Can the principle of ultima ratio operate in this context and how should this occur? Recent events, including the expansion of the anti-money laundering legislation and the measures enacted following the economic crisis, will be used as emblematic cases illustrating the development of transnational law and its impact on society. The analysis will also...

  11. Paradox of China's Jurisprudence in Course Of Social Development%社会发展中的中国法理学悖论

    Institute of Scientific and Technical Information of China (English)

    范进学

    2012-01-01

    To some extent , there exists a kind of tension between jurisprudence and the Chinese model in research & teaching since reforming and opening, whose superficial characteristics is: paradox between the western jurisprudential knowledge and the oriental experience of China's model, paradox between jurisprudential "standard of right" and the target of "development" & "stability" of China's model, paradox between the priority of the legal independent value and the priority of the legal orderly value of China's model, paradox between legal concept based on "individual" and the legal concept based on "the people" of China's model. How to recognize and treat these paradoxes is the new subject of the development of jurisprudence at present.%改革开放以来的法理学在研究与教学上在一定程度上与中国模式之间存在着一种张力,其表征是:法理学之西方知识与中国模式之东方经验的悖论、法理学之“权利本位”与中国模式之“发展”“稳定”目标的悖论、法理学之法律自由价值优先与中国模式之法律秩序价值优先的悖论、法理学之以“个人”为本的法律观与中国模式之以“人民”为本的法律观的悖论。如何认识与看待这些悖论,是当下法理学发展的新课题。

  12. Comparing Ibâḍî and Sunnî law in Baṣra : the case of the zakât on cattle

    Directory of Open Access Journals (Sweden)

    Ersilia Francesca

    2014-07-01

    Full Text Available This paper intends to analyze the origins of Ibâḍî law in Baṣra and its relationship with Sunnî tradition during the early centuries of Islam. Some important questions will be examined, for example whether or not the Ibâḍî fiqh developed independently from the Sunnî legal tradition, what role the early Ibâḍî authorities played, or whether the role given to Jâbir b. Zayd in the formation of Ibâḍî fiqh should be accepted. My paper will focus on the case of the zakât on cattle. In the manuscript called Aqwâl Qatâda b. Di‘âma, we find a tradition which states that the zakât is due on cattle when a niṣâb (minimum amount of five animals is held, as for camels. This is the first account preserved in the Ibâḍî source on niṣâb al-baqar (the minimum quantity for cattle. According to the teachings of the Prophet to Mu‘âdh b. Jabal, Sunnî schools used to fix the niṣâb amount at 30 head of cattle, and the Shiʿî followed the same rule. My intention is to explain these discrepancies between Sunnî and Shiʿî school, on one hand, and the Ibâḍî legal tradition on the other hand.

  13. Administrative Law: The Hidden Comparative Law Course.

    Science.gov (United States)

    Strauss, Peter L.

    1996-01-01

    Argues that the main contribution of the Administrative Law course to law students is that it presents problems which contrast with those of the standard court-centered curriculum and can illuminate other areas of law, repeatedly confronting students with doctrinal differences. Offers several examples from civil procedure, constitutional law, and…

  14. What would Mary Douglas do? A commentary on Kahan et al., "Cultural cognition and public policy: the case of outpatient commitment laws".

    Science.gov (United States)

    Swanson, Jeffrey

    2010-06-01

    Involuntary outpatient commitment is a highly controversial issue in mental health law. Strong supporters of outpatient commitment see it as a form of access to community-based mental health care and a less restrictive alternative to hospitalization for people with severe mental illness; vocal opponents see it as an instrument of social control and an unwarranted deprivation of individual liberty. Kahan and colleagues apply the theory of "cultural cognition" in an empirical study of how cultural worldviews influence support for outpatient commitment laws among the general public and shape perceptions of evidence for these laws' effectiveness. This article critiques Kahan et al. and offers an alternative perspective on the controversy, emphasizing particular social facts underlying stakeholders' positions on outpatient commitment laws.

  15. Time-capsule: Explorations of Concepts of Time and Law in Colonial New Zealand

    Directory of Open Access Journals (Sweden)

    Jonathan Barrett

    2009-12-01

    Full Text Available Postcolonial legal culture in New Zealand (Aotearoa has sought to revise the past by reinterpreting Victorian legal contexts in the light of contemporary understandings of inter-cultural differences. This article develops an argument that demonstrates the relationship between cultural and legal notions of time during nineteenth century New Zealand. It examines the way in which Victorian attitudes were expressed in the expansion of colonial empire and the discursive ideologies which may have informed them. It explores the notion of time as expressed in lawmaking in colonial New Zealand through an examination of legal and philosophical commentary derived from contemporary jurisprudence and para-legal literature. The article is concerned with presenting an argument for the way in which colonial law and lawmakers manipulated the symbolic notion of time to the possible occlusion of indigenous interests in colonial New Zealand.

  16. Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

    Directory of Open Access Journals (Sweden)

    Giorgio Baruchello

    2016-03-01

    Full Text Available In this paper, we aim to survey representative constitutional amendments in the European Union’s area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies, since the outset of the ongoing international economic crisis, 2008-2015. We assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th volume of the Annuaire international des droits de l’homme, edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.

  17. Growth Equation with Conservation Law

    OpenAIRE

    Lauritsen, Kent Baekgaard

    1995-01-01

    A growth equation with a generalized conservation law characterized by an integral kernel is introduced. The equation contains the Kardar-Parisi-Zhang, Sun-Guo-Grant, and Molecular-Beam Epitaxy growth equations as special cases and allows for a unified investigation of growth equations. From a dynamic renormalization-group analysis critical exponents and universality classes are determined for growth models with a conservation law.

  18. THE DISTINCTIVE FEATURES OF EUROPEAN CRIMINAL LAW

    OpenAIRE

    Lamya - Diana AL-KAWADRI

    2014-01-01

    This study aims to analyze the case law of the ECJ and ECHR on the nature of administrative sanctions and their relation to criminal law. Also, some important criteria used by different Member States in their own legal systems in differentiating between criminal and administrative sanctions are presented. As it will be shown in this study, in establishing the difference between administrative and criminal offence sanctions, the case law of both the European Court of Human Rights and the Court...

  19. To what extent does Tobler's 1st law of geography apply to macroecology? A case study using American palms (Arecaceae)

    OpenAIRE

    Skov Flemming; Svenning Jens-Christian; Bjorholm Stine; Balslev Henrik

    2008-01-01

    Abstract Background Tobler's first law of geography, 'Everything is related to everything else, but near things are more related than distant things' also applies to biological systems as illustrated by a general and strong occurrence of geographic distance decay in ecological community similarity. Using American palms (Arecaceae) as an example, we assess the extent to which Tobler's first law applies to species richness and species composition, two fundamental aspects of ecological community...

  20. Regulatory on the corporate social responsibility in the context of sustainable development by mandatory in the world trade organization law perspective (case study in Indonesia)

    OpenAIRE

    SH. M. Hum. TAUFIQURRAHMAN

    2013-01-01

    Regulatory on the Corporate Social Responsibility (CSR) by mandatory in Indonesia as stipulated in Article 74 of Law No. 40/2007 on the Limited Liability Company (hereafter the Company Law) raises a contradiction. Those who agree argue that the company is not solely for profit, but more than that are participating in social issues and the preservation of the environment within the framework of sustainable development. Conversely, those who disagree view that social issues and the environment ...

  1. THE “NE BIS IN IDEM” PRINCIPLE IN THE CASE-LAW OF THE EUROPEAN COURT OF JUSTICE (II. THE ‘FINAL JUDGMENT’ AND ‘ENFORCEMENT’ ISSUES

    Directory of Open Access Journals (Sweden)

    Norel NEAGU

    2012-11-01

    Full Text Available Two major events occurred in the recent years have triggered a series of cases in the field of criminal law, having transnational dimension and requiring an identical interpretation of the European law in the Member States. The first one is the “communautarisation” of the Schengen Aquis. The second one is the extension of the jurisdiction of the European Court of Justice over the (former third pillar (Police and Judicial Cooperation in Criminal Matters. As a result, several cases were referred to the European Court of Justice for the interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters. This article gives a general overview of the case-law of the European Court of Justice in the field of ‘ne bis in idem’ principle, shortly presenting the legal framework, the facts, the questions addressed to the Court by the national jurisdictions, the findings of the Court, as well as some conclusions on the interpretation of the principle. In this second study on the ‘ne bis in idem principle’ we will deal with the notion of ‘final judgment’ and ‘enforcement’ issues.

  2. Changing the Order of Newton's Laws--Why & How the Third Law Should Be First

    Science.gov (United States)

    Stocklmayer, Sue; Rayner, John P.; Gore, Michael M.

    2012-01-01

    Newton's laws are difficult both for teachers and students at all levels. This is still the case despite a long history of critique of the laws as presented in the classroom. For example, more than 50 years ago Eisenbud and Weinstock proposed reformulations of the laws that put them on a sounder, more logically consistent base than is presented in…

  3. Takeover laws and financial development

    OpenAIRE

    Nenova, Tatiana

    2006-01-01

    The issue of "an appropriate" legal framework, especially in the case of the takeover market, has been poorly studied in the case of emerging markets, yet it is of immediate relevance and practical policymaker interest. The study makes a first attempt to analyze takeover regulations in a comparative context across 50 countries. It proposes a methodology to create a detailed index on the most salient features of capital market laws, and illustrates the approach on the case of takeover legislat...

  4. Recent publications on environmental law

    International Nuclear Information System (INIS)

    The bibliography contains 1160 references to publications covering the following subject fields: General environmental law; environmental law in relation to constitutional law, administrative law, procedural law, revenue law, criminal law, private law, industrial law; law of regional development; nature conservation law; law on water protection; waste management law; law on protection against harmful effects on the environment; atomic energy law and radiation protection law; law of the power industry and the mining industry; laws and regulations on hazardous material and environmental hygiene. (orig./HP)

  5. Exploration of Online Case Teaching Mode in Open Education of Law Major--Practice and Reflection on the "State Compensation Law" online course teaching%开放教育法学专业网上案例式教学模式的探索--《国家赔偿法》课程网上教学的实践与反思

    Institute of Scientific and Technical Information of China (English)

    李爽

    2013-01-01

      网上教学是开放教育突破传统课堂式教学模式的一大特色,利用网络平台进行案例教学更是适合开放教育法学专业的一种教学模式。笔者在《国家赔偿法》课程的网上教学活动中,探索运用案例式教学,以期为今后的开放教育法学专业相关课程的网上教学提供参考借鉴。%  Online teaching is a major feature of the open education, and case teaching by using the network platform is a kind of teaching mode for the open education of law major.In the online teaching activity of the State Compensation Law, the author explored case teaching, to provide a reference for related courses online teaching in open education of law major.

  6. EL DERECHO A LA EDUCACIÓN Y SUS REGULACIONES BÁSICAS EN EL DERECHO CONSTITUCIONAL CHILENO E INTERNACIONAL DE LOS DERECHOS HUMANOS THE RIGHT TO EDUCATION AND REGULATIONS BASIC IN THE CHILEAN CONSTITUTIONAL LAW AND THE INTERNATIONAL HUMAN RIGHTS LAW

    Directory of Open Access Journals (Sweden)

    Humberto Nogueira Alcalá

    2008-01-01

    Full Text Available A través del presente artículo se delimita el derecho a la educación determinando los atributos básicos que constituyen el derecho y sus fronteras, teniendo en consideración el derecho constitucional y el derecho internacional de los derechos humanos, es especial el Pacto Internacional de Derechos Económicos, Sociales y Culturales de Naciones Unidas, como asimismo, se consideran las líneas básicas jurisprudenciales en la materia.Through this article delineates the right to education by determining the basic attributes that make up the law and its borders, taking into consideration the constitutional law and international law of human rights, especially the International Convention of Economic, Social and Cultural Rights, as also are considered the basic lines of jurisprudence in this area.

  7. Economic Analysis of Law

    OpenAIRE

    Louis Kaplow; Steven Shavell

    1999-01-01

    This entry for the forthcoming The New Palgrave Dictionary of Economics (Second Edition) surveys the economic analysis of five primary fields of law: property law; liability for accidents; contract law; litigation; and public enforcement and criminal law. It also briefly considers some criticisms of the economic analysis of law.

  8. 25 CFR 11.500 - Law applicable to civil actions.

    Science.gov (United States)

    2010-04-01

    ... 25 Indians 1 2010-04-01 2010-04-01 false Law applicable to civil actions. 11.500 Section 11.500 Indians BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR LAW AND ORDER COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE Civil Actions § 11.500 Law applicable to civil actions. (a) In all civil cases,...

  9. Book Review: Applicable law in investor-state arbitration: the interplay between national and international law

    OpenAIRE

    Maniruzzaman, Munir

    2014-01-01

    Over the last quarter-century international investment arbitration has grown exponentially and case law in the field is developing apace towards an emerging body of international law, known as international investment law. With many distinct characteristics international investment arbitration or investor-state arbitration, as opposed to international commercial arbitration, is emerging as a column of the edifice of public international law, according to many jurists. One may wonder, however,...

  10. Protection of the Human Rights of Victims of Sexual Abuse: An Approach from the Field of Jurisprudence

    Directory of Open Access Journals (Sweden)

    Lina Marcela Estrada Jaramillo

    2012-08-01

    of the legislation and main rulings issued by the Colombian Supreme Court of Justice and the Constitutional Court, as well as by the Inter-American Court of Human Rights. This issue is of great interdisciplinary relevance since victims require the support of professionals from the fields of law, forensic medicine, psychology, and social work so that their rights are recognized and valued by society and the administration of justice.

  11. Obrigações empresariais no Novo Código Civil Corporate law and the New Brazilian Civil Code

    Directory of Open Access Journals (Sweden)

    Ligia Paula Pires Pinto Sica

    2008-06-01

    Full Text Available Tendo em vista a promulgação do novo código civil brasileiro, que reúne dispositivos que revogam o antigo código civil de 1916 e a maioria dos capítulos do código comercial de 1850, unificando-os, é importante que se frise que remanesce a diferenciação entre as matérias de direito civil e comercial, de acordo com suas lógicas peculiares. Sendo assim e tendo o novo código introduzido diversas normas de caráter geral, este trabalho pretende discutir o papel do juiz e da jurisprudência na aplicação dessas normas de maneira casuística, dando-lhes tratamentos distintos de acordo com os fatos apresentados em juízo, de forma a manter a autonomia das áreas do direito mencionadas e garantir aos agentes econômicos o grau de segurança e previsibilidade necessário às suas atuações no mercado.In regard of the enactment of the New Brazilian Civil Code, that unifies the issues treated in the old civil code from 1916 and on the majority of the chapters of the commercial code from 1850, it's important to insist that the differences between the civil and commercial law remains, according to their peculiar logics. Asitis, and as the new code brought several rules of general character, this paper intends to discuss the role of the judge and jurisprudence in the civil law system, by interpretating those rules in a casuistic manner, giving them different treatments, according to the presented facts during litigation, in a way to maintain the autonomy of the law areas mentioned above and guarantee to the economic agents the level of certainty and previsibility, needed to exercise their activities in the market.

  12. Law Enforcement Locations

    Data.gov (United States)

    Kansas Data Access and Support Center — Law Enforcement Locations in Kansas Any location where sworn officers of a law enforcement agency are regularly based or stationed. Law enforcement agencies "are...

  13. On Perfecting the Rating and Checking System of Law and Litigation Related Petition Cases%试论涉法涉诉信访案件评查制度的完善

    Institute of Scientific and Technical Information of China (English)

    王静; 张立纳; 王金利

    2011-01-01

    我国涉法涉诉信访案件频发的原因是多样化的,而我国涉法涉诉信访案件的评查制度尚没有完全建立。坚持实事求是、依法评查并严格遵守法律程序的评查原则,建立涉法涉诉信访案件评查网络信息管理系统,明确评查主体和评查任务,实现评查机制的灵活多样和评查过程的公开透明.建立一评终局的评查终局制度方能缓解我国涉法涉诉信访案件当前的混乱状态。%The law and litigation related petition case frequently occur for a variety of reasons. China has not fully established rating and checking system of law and litigation related petition cases. To alleviate current confusion of law and litigation related c

  14. Measuring Virtual Student-Student Cooperation: A Case Study on the Evaluation of Cooperative Learning in a Virtual Distributed Computer and Law Course

    Science.gov (United States)

    Nett, Bernhard

    2005-01-01

    This article demonstrates the evaluation of a German Computer and Law (C&L) seminar, which has been conducted in an experimental, distributed manner with five institutes co-operating. The evaluation was dedicated to the question, in which way the course supported cooperative learning among the students of the different participating institutes. As…

  15. Scales of Political Action and Social Movements in Education: The Case of the Brazilian Black Movement and Law 10.639

    Science.gov (United States)

    dos Santos, Renato Emerson Nascimento; Soeterik, Inti Maya

    2016-01-01

    This paper examines social coordination by the Brazilian Black Movement in the area of Brazilian education. It explains how these developments relate to the construction of race-based public education policies in the country. Focus goes to the process of creation and implementation of law 10.639 in Brazilian Basic education. Using the concept…

  16. [The case for a new French public health law at the service of a fairer and more effective national health policy].

    Science.gov (United States)

    Cambon, Linda; Alla, François; Lombrail, Pierre

    2012-01-01

    The next public health law in France will need to address a number of issues. A?series of recent reports have highlighted both sharp disparities in health status ? with high rates of premature death and increasing social inequalities in health ? and the need to organize public health. The incoherence of public health policies, the lack of inter-ministerial coordination (a prerequisite for the reduction of health inequalities) and the lack of structure and evaluation in the area of prevention are major weaknesses that the new public health law will need to address. Beyond the inevitable core measures, the new law will also need to promote deep structural reforms, including a unified national policy refocused on key priorities and incorporating non-health sectors, the development of a more effective and coherent prevention policy and, finally, a focus on the issue of inequalities requiring clearly defined integrated measures, not only as a stated principle but as an outcome to be achieved by all health policies. The next public health law will need to be a vehicle for an inevitable and long overdue structuring of public health policy. PMID:23043699

  17. Tenancy Law Denmark

    DEFF Research Database (Denmark)

    Edlund, Hans Henrik

    2003-01-01

    Report on Danish Tenancy Law. Contribution to a research project co-financed by the Grotius Programme for Judicial Co-Operation in Civil Matters. http://www.iue.it/LAW/ResearchTeaching/EuropeanPrivateLaw/Projects.shtml......Report on Danish Tenancy Law. Contribution to a research project co-financed by the Grotius Programme for Judicial Co-Operation in Civil Matters. http://www.iue.it/LAW/ResearchTeaching/EuropeanPrivateLaw/Projects.shtml...

  18. Seeking Deliberation on the Unborn in International Law

    Directory of Open Access Journals (Sweden)

    SA de Freitas

    2011-08-01

    Full Text Available International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Such deliberation is required, irrespective of the fact that jurisprudential debate on the unborn and on abortion is complex and controversial. The protection of human life, well-being, and dignity are essential aims of the United Nations Charter and the international system created to implement it. Although there have been collective efforts resulting in substantial development in international human rights law, the international community has not approached the legal status and protection of the unborn as a matter of urgency – this, while much has been accomplished regarding women, children, animals and cloning. This article therefore argues for the development of a deliberative framework so as to further the recognition (not necessarily in an absolute sense of the unborn in international law, bearing in mind that opposition to abortion does not of itself constitute an attack on a woman's right to respect for privacy in her life. The article also sets out what such deliberation on the legal status and protection of the unborn entails, against the background of a procedurally-rational approach.

  19. Le droit musulman en pratique : genre, filiation et bioéthique Islamic Jurisprudence in Practice: Gender, Filiation and Bioethics

    Directory of Open Access Journals (Sweden)

    Corinne Fortier

    2010-07-01

    referring their interpretations to classic Islamic texts of jurisprudence. Islamic jurisprudence (fiqh far from being inviolable and unchanging as is often assumedis continually undergoing changes, as a pragmatic response to contemporary challenges. This is made evident by thediversity of legal opinions produced by Muslim jurists on issues that are ceaselessly re-emerging before the scene.

  20. Source and Flow of Law Philosophy of Cooperation%合作法哲学的源与流

    Institute of Scientific and Technical Information of China (English)

    张治宇

    2015-01-01

    The core of cooperation law philosophy theory is that law should be based on cooperation instead of right and obligation . Justice theory of ancient Greece is the source of law philosophy of cooperation and the demand of Each in His Proper Place is the proper cooperation established on the basis of reasonable division of labor .At modern times ,the first branch of cooperation law philosophy is the natural law school represented by Grotius ,w hose view is that the core value target of law is to safeguard the social contact and interaction . T he second branch is the school of Sociological Jurisprudence represented by Duguit ’ s social solidarism jurisprudence , w hose view is that the core value target of law is to safeguard the social relations of cooperation .The enlightenment of Cooperation Law Philosophy is that human history is the course of new cooperation order constantly replacing the old one .Through cooperation we can understand all the keys of human history .%合作法哲学的理论内核是:法律既不应该以权利为本位,也不应该以义务为本位,而是应该以合作为本位。古希腊正义理论是合作法哲学的源头,“各得其所”要求的是建立在合理的分工基础上的有序合作。近代以来,合作法哲学第一支支流是以格劳秀斯为代表的自然法学派,其观点为法律的核心价值目标是捍卫社会联系和社会交往,第二支支流是以狄骥的“社会连带主义法学”为代表的社会法学派,其观点为法律的核心价值目标是捍卫社会合作关系。合作法哲学的启示是:人类历史就是人类在合作实践的基础上不断用新的合作秩序取代旧的合作秩序的发展过程,只有在合作之中我们才能发现理解全部人类历史的钥匙。

  1. Human Trafficking in Indonesia: Law Enforcement Problems

    Directory of Open Access Journals (Sweden)

    Nathalina Naibaho

    2011-01-01

    Full Text Available Human trafficking is considered as a crime against humanity. To conduct the due process of law towards cases related with human trafficking, the law enforcement officers cannot work by themselves. They really need assistance from many parties – such as active report from the society – as a valuable information to disclose such cases. Law enforcement conducted towards woman and child trafficking is still ineffective. It is proven by many existing cases, that low number of processed cases before the court and minimum sanction convicted to the perpetrators is clearly evident. Factors which are deemed to have correlation with low attempt of law enforcement towards legal case on this case, among others are: Lack of the Government’s commitment to fight against the crime of human trafficking, in the event that the ineffectiveness in utilization of prevailing laws and regulation; Lack of capacity of professionalism of law enforcement agency (and relevant parties in handling women and child trafficking at the field. This may be caused by lack of knowledge on infringed regulation. For that matter, those law enforcement agency shall be given socialization and an SOP (standardized operational procedure, so that there will be no inconsistency in handling the existing cases.

  2. Human Rights in National Administrative Law

    DEFF Research Database (Denmark)

    Næsborg-Andersen, Ayo

    Human rights are increasingly debated in the public sphere, yet discussions of human rights law are traditionally all but invisible in the discussions on national administrative law. This is at least the case in Denmark. This book sets out to analyse if, and in what way, the application of human...... developed using the theory of legal capability and communication theories. Discussing new ways of analysing the application of human rights, this book is relevant for scholars and professionals primarily working with human rights law, but also administrative law, both nationally and internationally....... rights law is visible in the case-law of institutions performing reviews of Danish administrative decisions. The book consists of three parts. The first part contains the introduction, research question, methodological considerations and delimitations. The second part is an in-depth look at the theory...

  3. The Re-interpretation of Power in Jurisprudence%权力概念的法理重释

    Institute of Scientific and Technical Information of China (English)

    周尚君

    2012-01-01

    从公法学立场来看,权力是由国家所垄断和专属的,它附属于国家,又被称为公权力。法律对公权力的规范是通过权力制衡来完成的。然而,事实上的权力不仅仅只有公权力一种,它可以分为政治学模式下的权力、经济学模式下的权力和社会学模式下的权力。尤其需要重视的是社会学模式下权力的多元化和微观化所带给我们的启示,微观权力理论有助于我们深入理解法律是如何通过对权力逻辑的把握而实践的,必须认真对待权力。%Over the point of the modern public law, the concept ot power woula monopol~zeu oy to~ ~-~, which is attached to it that is called public power or state power. And the law rules this sort of power by the checks and balance. However, there is not only the public power among the powers that are divided into the following mod- els as the politics, the economics and the sociology. And particularly, the multiply and the micro-forms of the power in the sociological aspect would give more clues in the way of understanding that how the law makes the practices and taking it seriously by the powers.

  4. On the Necessarily Public Character of Law

    OpenAIRE

    Walker, Neil

    2012-01-01

    This paper asks whether and how modern law may be understood as necessarily public in character. It begins by looking at the two main ways - doctrinal and disciplinary - in which law is understood as only selectively and contingently public. In both these cases law's public quality is counterposed to its private quality. However, publicness can also be conceived of as the juridical master category embracing the public and the private in the disciplinary and doctrinal senses. This conception o...

  5. The Incorporation of Public International Law into Municipal Law and Regional Law against the Background of the Dichotomy between Monism and Dualism

    Directory of Open Access Journals (Sweden)

    Gerrit Ferreira

    2014-11-01

    Full Text Available Monism and dualism represent two different approaches towards the relationship between public international law and municipal law. While the former views public international law and municipal law as a single legal system, the latter regards these two areas of law as separate and distinct legal systems that exist alongside each other. However, not all legal systems are clearly either monist or dualist. The dichotomy between monism and dualism no longer only concerns the relationship between public international law and municipal law, but also increasingly affects the relationship between public international law and regional law. This contribution discusses the application of the monist and dualist approaches by the South African Constitutional Court in the Glenister case and the European Court of Justice in the Kadi and Hungary cases in order to illustrate the practical application of the dichotomy between monism and dualism in a municipal system and on a regional level.

  6. A Venture in Constitutional Law.

    Science.gov (United States)

    Cole, W. Graham; Dillon, Dorothy H.

    1980-01-01

    Senior high girls and boys from two single-sex schools undertook a study of a Supreme Court case that provided insight not only into constitutional law and history but also into how men and women can work together and relate in other ways than dating. (DS)

  7. The Subject Before the Law

    DEFF Research Database (Denmark)

    Simonsen, Karen-Margrethe

    2013-01-01

    This article presents a critical discussion of the importance and use of narration within the law. It takes its point of departure in Robert Musil's "The Man Without Qualities", especially focusing on the Moosbrugger case, the resemblance between the criminal Moosbrugger and the intellectual hero...

  8. What Does the Law Say?

    Science.gov (United States)

    Zirkel, Perry A.

    2011-01-01

    In this article, the author provides legal explanations to the following concerns: (1) case law on specific learning disability (SLD) eligibility; (2) recent developments on response to intervention (RTI); (3) Individuals with Disabilities Education Act (IDEA) rules; and (4) the Free Appropriate Public Education (FAPE) regulation. The author's…

  9. RISKS, REASONS AND RIGHTS: THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND ENGLISH ABORTION LAW.

    Science.gov (United States)

    Scott, Rosamund

    2016-01-01

    Although there is no right to abort in English law but rather abortion is a crime, the lawful grounds for which are instantiated in the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990), the regulation of abortion is sometimes perceived as being fairly 'liberal'. Accordingly, the idea that aspects of English law could be criticised under the European Convention on Human Rights, with which the UK must comply following the Human Rights Act 1998, may seem unlikely. Indeed, English law is compatible with the consensus amongst contracting states that abortion should be available on maternal health grounds. However, analysis of the UK's negative obligations under Article 8 shows that section 1(1)(a) of the Act is problematic as it operates in the first trimester. Further, given the European Court of Human Rights' emphasis on the reduced margin of appreciation once a state has legalised abortion to some degree and its jurisprudence relating to a state's positive obligations, the analysis shows that, while English law may not be problematic in relation to the lack of guidelines relating to the lawful grounds for abortion, it may well be in relation to the lack of a formal system for the review of any two doctors' decision not to grant a termination. Notwithstanding the morally serious nature of the decision to abort, the analysis overall raises questions about the need for at least some degree of abortion law reform, particularly in relation to the first trimester, towards a more autonomy-focused, though time-limited, rights-based approach.

  10. RISKS, REASONS AND RIGHTS: THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND ENGLISH ABORTION LAW

    Science.gov (United States)

    Scott, Rosamund

    2016-01-01

    Although there is no right to abort in English law but rather abortion is a crime, the lawful grounds for which are instantiated in the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990), the regulation of abortion is sometimes perceived as being fairly ‘liberal’. Accordingly, the idea that aspects of English law could be criticised under the European Convention on Human Rights, with which the UK must comply following the Human Rights Act 1998, may seem unlikely. Indeed, English law is compatible with the consensus amongst contracting states that abortion should be available on maternal health grounds. However, analysis of the UK's negative obligations under Article 8 shows that section 1(1)(a) of the Act is problematic as it operates in the first trimester. Further, given the European Court of Human Rights' emphasis on the reduced margin of appreciation once a state has legalised abortion to some degree and its jurisprudence relating to a state's positive obligations, the analysis shows that, while English law may not be problematic in relation to the lack of guidelines relating to the lawful grounds for abortion, it may well be in relation to the lack of a formal system for the review of any two doctors' decision not to grant a termination. Notwithstanding the morally serious nature of the decision to abort, the analysis overall raises questions about the need for at least some degree of abortion law reform, particularly in relation to the first trimester, towards a more autonomy-focused, though time-limited, rights-based approach. PMID:26546800

  11. The protection of workers in the case of business transfers : a comparative study of the law in the USA, UK and South Africa

    OpenAIRE

    Ver Loren van Themaat, A. A. H.

    1994-01-01

    Business transfers and accompanying business changes are a focal point for the tension between the protection of rights of employees, including their property rights in the job and their "right" to meaningful participation, and the interests of management in achieving its economic objectives effectively. A comparison of the law in the United States, South Africa and the United Kingdom can cast the divergent interests, which become conspicuous during corporate reorganisations, i...

  12. CSR activities within service corporations : A case study about how four legal jurists and their service corporation conduct CSR activities with primary focus on SME law firms.

    OpenAIRE

    Kornmann, Jan; Adolfsson, Marcus

    2010-01-01

    Purpose: The purpose of this thesis is to interview four legal jurists in order to explore how they conduct CSR activities within their service corpora-tion, with primary focus on SME law firms. Background: A current issue to address concerning the conduct of business these days is CSR activities. Although, the previous research concerning CSR activities and the service sector is limited. Theoretical Framework: The theoretical framework is divided into four parts; a general part concerning th...

  13. Environmental protection and international law: the case of nuclear energy; La protection de l'environnement et le droit international: cas de l'energie nucleaire

    Energy Technology Data Exchange (ETDEWEB)

    Dagicour, F

    2002-03-15

    Given the very hazardous nature of its activity, the nuclear industry has often been considered to be without a future. Concerns over climate change and increasing international energy needs have, however, shone a new light on the positive aspects of nuclear energy. As the only clean, stable and inexpensive energy source, available, nuclear energy promises a constant supply of electricity while protecting the atmosphere. This new relationship between the environment and nuclear energy calls for an analysis of the international regulation of the risks posed by nuclear energy production. Since the beginning of the nuclear age, the long term, unknown, and large geographic scope of the risks and effects of this activity have led to the adoption of a set of normative rules outside of the scope of international environmental law. The norms that now regulate this new, ultra-hazardous activity resulted in a set of rules aimed at protecting the environment in the face of high risk activities that now form the heart of international environmental law. Unwilling relinquish national sovereignty, States adopted a system of non-binding regulation to protect the environment and promote the nuclear industry. The Chernobyl accident later pointed to the weakness of this approach. Despite this weakness, the adoption of a soft law approach has led to progress in environmental protection in an area where States have been loathe to give up their sovereignty. (author)

  14. Is There Any Evidence on the Existence of an Environmental Taxation Kuznets Curve? The Case of European Countries under Their Rule of Law Enforcement

    Directory of Open Access Journals (Sweden)

    Concetta Castiglione

    2014-10-01

    Full Text Available The paper gives new insights into the environmental taxation policy, demonstrating the existence of an inverse U-shaped relationship between environmental taxation and income in European countries. Our findings reveal this relationship to be influenced by enforcement of the rule of law, which contributes to shifting the turning point on the curve to lower income levels. We show that former transition economies have not reached the turning point due to weak institutions. To achieve the goal of sustainable development, the European Environment Agency’s Environmental Taxation Reform, proposing to shift taxation from “goods” to “bads”, should be accompanied by effective enforcement or the rule of law. The heterogeneity found between market-based and former transition European countries demonstrates the existence of problems at the EU-level in the coordination of environmental policies and enforcing the rule of law. In addition, the analysis of the determinants of environmental taxation points to the importance of factors related to consumption and production, governance, environmental quality, oil price shocks and the shift of environmental policy in European countries.

  15. Tax Credit Scholarship Programs and the Law

    Science.gov (United States)

    Sutton, Lenford C.; Spearman, Patrick Thomas

    2014-01-01

    After "Zelman v. Simmons-Harris" (2002), civil conflict over use of vouchers and taxes to purchase private education, especially in religious schools, largely remained an issue for state courts' jurisprudence. However, in 2010, it returned to the U.S. Supreme Court when Arizona taxpayers challenged the constitutionality of the…

  16. Tax Law System

    Science.gov (United States)

    Tsindeliani, Imeda A.

    2016-01-01

    The article deals with consideration of the actual theoretic problems of the subject and system of tax law in Russia. The theoretical approaches to determination of the nature of separate institutes of tax law are represented. The existence of pandect system intax law building as financial law sub-branch of Russia is substantiated. The goal of the…

  17. AN UNPRECEDENTED LAW

    Institute of Scientific and Technical Information of China (English)

    2007-01-01

    On the eve of the 10th anniversary of Hong Kong’s return to China and the implementation of the Basic Law of the Hong Kong Special Administrative Region, Beijing Review reporter Li Li spoke to Professor Xu Chongde from the Law School of Renmin University of China, a Basic Law drafter, about how the law was created and its spirit.

  18. Legal Thinking on the Case of the Letters or Petition Related with Law and Litigation%涉法涉诉信访案件处置的法律思考

    Institute of Scientific and Technical Information of China (English)

    林玫瑰

    2011-01-01

    如何在法律框架内妥善解决涉法涉诉信访问题,确保社会公正,维护法律权威,是当今亟待解决的课题。文章从法律的角度,分析了当前涉法涉诉信访案件增多的原因,探讨我国目前涉法涉诉信访案件处置机制存在的缺失,并结合实际重点提出了有效处置涉法涉诉信访案件的原则与现实路径。%The urgent issue needed to resolve is to properly resolve letters or petition related with law and litigation, ensure social justice and maintain the legal authority. This paper analyses the reason of the increased case from the legal point of view, discusses the mechanisms loss of the case and combined with the practical focus, puts forwards the principle and countermeasure to solve the the case of letters or petition related with law and litigation.

  19. ESSENTIALISM MAKES FOR STRANGE BEDMATES: THE SUPREME COURT CASE OF J.A. AND THE INTERVENTION OF L.E.A.F.

    Directory of Open Access Journals (Sweden)

    Richard Jochelson

    2015-05-01

    Full Text Available In the recent case of R. v J.A, the majority of the Supreme Court of Canada determined that an unconscious person could not consent in advance to sexual touching. This paper reviews the majority reasoning and questions whether the intervention of the Women’s Legal Education and Action Fund [LEAF] penetrated the reasoning. The majority couched its reasoning in the interpretive tenets of judicial conservatism. Yet this conservatism aligned with the equality-based submissions of LEAF. Moments of such converging ideologies are relatively unique in the jurisprudence. This convergence is compared with a notable historical moment of convergence in the development of indecency and obscenity law in Canada. This time, however, LEAF’s rationales are more likely to meet little in the way of academic or activist critique because of the changing nature of identity politics in Canada. Dans la récente affaire R. c. J.A., la majorité des juges de la Cour suprême du Canada a établi qu’il ne peut y avoir consentement à l’avance à des actes sexuels commis pendant qu’une personne est inconsciente. Le présent article passe en revue le raisonnement de la majorité et examine si l’intervention du Fonds d’action et d’éducation juridiques pour les femmes (FAEJ a influencé ce raisonnement. La majorité des juges a fondé son raisonnement sur les principes d’interprétation du conservatisme judiciaire. Or, ce conservatisme allait dans le sens des arguments du FAEJ en matière d’égalité. Un tel degré de convergence d’idéologies est relativement rare dans la jurisprudence. La convergence dans cette affaire est comparée à celle, notable et historique, qu’on a connue lors de l’élaboration de la législation sur l’indécence et l’obscénité au Canada. Cette fois-ci, cependant, les motifs du FAEJ vont probablement être peu critiqués par les milieux universitaire et militant, étant donné l’évolution de la politique identitaire

  20. 徒"法"不足以自行——从"张学英诉蒋伦芳遗赠纠纷案"看我国继承法、婚姻法相关制度的完善%Law Needs a Perfect Rule——From the Case of"Zhang Xueying vs. Jiang Lunfang";Noting the Improvements to Systems Related to China's Succession Law and Marriage Law

    Institute of Scientific and Technical Information of China (English)

    杨晋玲

    2015-01-01

    The article starts with a case that occurred years ago and articulates that our nation's Succession Law and Marriage Law, due to their excessive principle-orientation and thus lack of applicability, as well as the absence of relevant regulations, compel legal professionals to judge such category of cases with basic principles such as public order and fair customs doctrine. The differences of opinions on relevant issues between academics and practitioners of law often expose the court's judgments to challenges from various sides and forces undue burdens onto the court. Besides, public order and fair customs doctrine is a remarkably futile and extremely abstract concept, its essence changes with time, and thus results in the bipolar tendency of its application and effects. In order to cope with the stability of law, legal theory and practice mainly resolve the issue with either categorization or value complement. However, both solutions have imperfections in term of applicability: the approach of categorization necessitates long-term accumulation and summary of cases, while the approach of value complement suffers from excess of subjectivity and, in the context of the recent establishment of our nation's case-directive system and the excessive influence of the judge's quality and related factors onto legal practice, too much discretion of the judge is very likely to engender judiciary unfairness. Nothing could address this issue better than enhancing relevant legal systems and making it realistically possible for the judge to pass judgments in compliance with the law.%我国继承法与婚姻法由于立法规定过于原则而缺乏可操作性,加之相关规定的缺乏,使司法实务在遇到一些类型的纠纷时,只能依据公序良俗这类基本原则来判案.因理论界与实务界对相关问题认识的差异,导致法院判决经常受到各方质疑,法院承受了不应承受的重负. 而公序良俗原则尚属于一个相当不确定及高度