WorldWideScience

Sample records for jurisprudence

  1. Hermeneutical and analytical jurisprudence

    Directory of Open Access Journals (Sweden)

    Spaić Bojan

    2014-01-01

    Full Text Available The article examines the main strands of development in jurisprudence in the last few decades from the standpoint of the metatheoretical differentiation between analytical and hermeneutical perspective in the study of law. The author claims that recent jurisprudent accounts can rarely be positioned within the traditional dichotomy natural law theories - legal positivism, and that this dichotomy is not able to account for the differences between contemporary conceptions of law. As an alternative the difference between the analytical and hermeneutical traditions in philosophy are explained, as they have crucially influenced posthartian strands in Anglo-American philosophy and postkelsenian strands in continental philosophy of law. Finally, the influence of hermeneutical philosophy and legal theory is examined in regards of the development of a hermeneutical theory of law and the development of legal hermeneutics.

  2. Brain Death in Islamic Jurisprudence

    Directory of Open Access Journals (Sweden)

    A Nikzad

    2016-07-01

    Full Text Available BACKGROUND AND OBJECTIVE: In today's world, Islamic jurisprudence encounters  new issues. One of the areas where jurisprudence gets involved is the issues concerned with brain death, whether brain death in jurisprudence and Islamic law is considered the end of life. In this study, brain death was discussed from the Shiite jurisprudence perspective and also the opinions of the specialists are taken into account. METHODS: This study is designed based on library collection and review of the literature in the field of brain death. Also, Quranic verses, hadiths and fatwas (religious opinions of the scholars are used. Some of the articles which were centered around Islamic jurisprudence, particularly Shiite jurisprudence that explain and deal with brain death were given special consideration. FINDINGS: Brain death from religious and jurisprudence perspective is considered the termination of life and removing the vital organs from the body is not viewed as committing manslaughter. A person with brain death is not a normally known injured man who is still alive. The brain death patinets have no life and getting rid of the body does not constitute a case of manslaughter. Amputation of the organs of brain death patients for donation and transplantation amounts to the amputation of a dead body. If the life of a Muslim is subject to transplant of organs from the body of a brain death patient, it will be permissible. CONCLUSION: In principle, if the life of a Muslim entails transplant of organs of brain death patients, it will be permissible 

  3. At loggerheads or in dovetails? The individual and the State from early modern jurisprudence to contemporary international jurisprudence.

    OpenAIRE

    De Lucca, Jean-Paul; Works in Progress Seminars Series

    2012-01-01

    A Works in Progress Seminars Series lecture entitled: At Loggerheads or in dovetails? The individual and the State from early modern jurisprudence to contemporary international jurisprudence. This talk is delivered by Dr Jean Paul De Lucca.

  4. Defensive Jurisprudence and Productivity Goals: Jabuticaba Consumerist

    Directory of Open Access Journals (Sweden)

    Miguel Luiz Barros Barreto de Oliveira

    2016-10-01

    Full Text Available This paper analyzes the application of so-called procedural defensive jurisprudence that values exacerbated rationalization of the judiciary activities, preventing the processing of judicial review in the higher courts, and its consequences in consumeristas indemnity processes. It analyzes the pressure to which judges are subjected, especially because of the need to comply with productivity goals. The construction work suggests the misconception of these imposed judicial policies to decrease the procedural stock since that attack the problem on screen superficially and do not solve the basic question.

  5. Islamic Jurisprudence and the Primacy of Shariah

    OpenAIRE

    Etim E. Okon

    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...

  6. Medical jurisprudence in the local context.

    Science.gov (United States)

    Rajah, K S

    1987-04-01

    Medical jurisprudence in the local context would require the examination of a wide area. This paper focuses on liability producing conduct arising from the providing of medical services, other than liability for criminal negligent conduct. It examines the circumstances in which the physician-patient relationship emerges, in medical jurisprudence as against practice by medical practitioners. Tort law is the dominant legal theory, and reference is made to some intentional and miscellaneous torts. Implied contracts creating the relationship are touched upon, besides the reference to vicarious liability. Insanity and diminished responsibility in the criminal law, particularly the issue of whether the status quo is satisfactory and reliance on medical reports for purposes of treatment under drug laws are examined. Where abortion is performed, the question whether the husband has any right to prevent his wife from having a lawful abortion is discussed in the local context. Some thoughts on the medical (therapy, education and research) Act 1972 are expressed in relation to the living body, the corpse and the parts of the human body. The patient's right to determination and information in the light of the above legislation is also discussed.

  7. La jurisprudence de John Austin : A propos de The Province of Jurisprudence Determined et The Use of the Study of Jurisprudence

    OpenAIRE

    Guigue, Alexandre

    2010-01-01

    International audience; Although he played a significant part in the history of legal positivism, John Austin is not very well known in France. Successively a lawyer, a professor of jurisprudence and a Royal commissionner, he only published one book during his life, based on his lectures. In The Province of Jurisprudence Determined, Austin develops a concept of law which is, although influenced by the greatest english philosophers, very peculiar for the time. By reducing the subject of jurisp...

  8. Islamic medical jurisprudence syllabus: A Review in Saudi Arabia.

    Science.gov (United States)

    Chamsi-Pasha, H; Albar, M A

    2017-10-01

    The ever-increasing technological advances of Western medicine have created new ethical issues awaiting answers and response. The use of genetic therapy, organ transplant, milk-banking, end-of-life care and euthanasia are of paramount importance to the medical students and need to be addressed. A series of searches were conducted of Medline databases published in English between January 2000 and January 2017 with the following keywords: medical ethics, syllabus, Islam, jurisprudence. Islamic medical jurisprudence is gaining more attention in some medical schools. However, there is still lack of an organised syllabus in many medical colleges. The outlines of a syllabus in Islamic medical jurisprudence including Islamic values and moral principles related to both the practice and research of medicine are explored.

  9. Tthe covenant in Ulrich Huber's enlightened theology, jurisprudence ...

    African Journals Online (AJOL)

    ... of God's law), and the secular social contract theories stemming from the early Enlightenment. This investigation gains value as a result of its emphasis on the prominence of the covenant in the inextricably linked disciplines of theology, jurisprudence and political theory; as well as its revitalisation of the complicated nature

  10. Mens Rea Principle and Criminal Jurisprudence in Nigeria ...

    African Journals Online (AJOL)

    This paper discusses the possibility or otherwise of the application of the common law doctrine of mens rea in Nigerian criminal jurisprudence. Our study discovers that the relevant provisions of the Criminal Code are exhaustive for considering and deciphering the criminal intent, if any, of an accused in view of conviction ...

  11. Maliki Jurisprudence and Boko Haram ideology versus Nigerian ...

    African Journals Online (AJOL)

    ... to Maliki thought in the light of the multifarious ways of practicing Islam as exemplified in Pakistan,Indonesia and Malaysia. The study finally examines the effects of the discussed ideological mindsets on Nigerian nation building. Keywords: Maliki Jurisprudence, Boko Haram, National Development, Islamic Law, Nigeria ...

  12. From Reified Abstractions to Situated Contexts: Feminist Jurisprudence, Paradigm Shift and Legal Change

    OpenAIRE

    Petoussi, Vassiliki Jr.

    1998-01-01

    This study addresses the extent to which feminist jurisprudence literature has developed the potential to initiate a legal paradigm shift leading to legal and consequent social change that would alleviate gender inequality. Drawing upon Kuhn's (1970) and Stacey and Thorne's (1985) arguments, I theorized that for a paradigm shift centered upon women and women's experiences to occur, feminist jurisprudence, particularly second- and third-phase feminist jurisprudence, needs to be incorporated i...

  13. PRINCIPLE ON THE LAND REGISTER IN THE INTERPRETATION OF JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Hamid Mutapčić

    2016-04-01

    Full Text Available For a longer period of time land registers in Bosnia and Herzegovina do not reflect the actual situation regarding property rights. The reasons should be sought in the poor quality of and inconsistent legislation that allowed non-registered acquisition of real property rights. On the basis of such legislation earlier Yugoslav jurisprudence had permanently denied the acquisition of property rights based on the principle of trust in the land registry. A new definition of the principle of trust, which implies the protection of the rights acquired on the basis of incorrect and incomplete land registry status, was introduced with the entry into force of the new entity laws on land registry. The main intention of the legislature is reaffirmation of the land registry and its basic principles, which is a precondition for faster and easier real estate transactions. However, the new law provides for real solutions that prevent the full application of the principle of trust, which results in the adoption of different and unequal judicial decisions. The paper presents analysis of such legal solutions, also defects that generate the emergence of different concepts of law are detected, and proposals de lege ferenda are listed in order to create the legal conditions for uniform jurisprudence.

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

    International Nuclear Information System (INIS)

    Lenz, C.O.

    1993-01-01

    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) [de

  15. Veterans affairs disability compensation: a case study in countertherapeutic jurisprudence.

    Science.gov (United States)

    Mossman, D

    1996-01-01

    This article examines the disability compensation programs and health care system of the Department of Veterans Affairs (VA) from the perspective of therapeutic jurisprudence scholarship. VA psychiatric patients have unambiguous financial incentives to endlessly litigate disability claims, to seek lengthy hospitalization rather than outpatient treatment, and to be ill, disabled, and unemployed. These countertherapeutic incentives reward incapacitation, encourage perceiving one-self as sick, diminish personal responsibility, taint treatment relationships, and lead to disparaging perceptions of VA patients. In addition, such perceptions produce moral dilemmas that arise from mutual distrust and frustration when patients and caregivers have antagonistic goals for the clinical encounter. Changes in disability determination procedures, compensation levels, and patterns of payment for treatment could give VA patients and caregivers a "healthier" health care system that encourages personal responsibility and promotes respectful attitudes toward patients. In the absence of such changes, an awareness of countertherapeutic financial incentives can help clinicians distinguish between psychopathological behavior and the pursuit of a rational income strategy, and can help practitioners recognize that apparently deceitful or litigious behavior represents a reasonable response to the economic contingencies that VA patients face.

  16. Credit risk management in banks from the perspective of jurisprudence

    Directory of Open Access Journals (Sweden)

    Sovilj Ranko

    2017-01-01

    Full Text Available The level, structure and nature of problem loans are a significant source of credit risk in the banking business, with the main reason for developing and increasing problem loans indicate the need for a comprehensive and strategic approach to solving them. In addition, the accumulation of problem loans in banks' balance sheets negatively affects the credit activity of banks and, consequently has a negative impact on economic activity, primarily due to reduced availability of possible sources of financing both for companies and for the population. One of the main reasons for the increased credit risk exposure of banks, especially before the outbreak of the subprime crisis, are less developed models for evaluation and measurement of credit risk, as well as a poor assessment of collateral. Therefore, this paper points out to the importance of careful management of credit risk as well as the need to develop appropriate methods and models for the early detection of problem loans and reducing exposure to credit risk. In the last part of the paper, the author provides an overview of the most important collaterals, with specific reference to domestic jurisprudence.

  17. Justice and justiciability: advancing solidarity and justice through South Africans' right to health jurisprudence.

    Science.gov (United States)

    Forman, Lisa

    2008-09-01

    The South African Constitutional Court's jurisprudence provides a path-breaking illustration of the social justice potential of an enforceable right to health. It challenges traditional objections to social rights by showing that their enforcement need not be democratically unsound or make zero-sum claims on limited resources. Indeed the South African experience suggests that enforcing health rights may in fact contribute to greater degrees of collective solidarity and justice as the Court has sought to ensure that the basic needs of the poor are not unreasonably restricted by competing public and private interests. This approach has seen the Court adopt a novel fights paradigm which locates individual civil and social rights within a communitarian framework drawing from the traditional African notion of'ubuntu', denoting collective solidarity, humaneness and mutual responsibilities to recognize the respect, dignity and value of all members of society. Yet this jurisprudence also illustrates the limits of litigation as a tool of social transformation, and of social rights that remain embedded in ideological baggage even where they have been constitutionally entrenched and enforced. This paper explores the Constitutional Court's unfolding jurisprudence on the right to health, providing background to the constitutional entrenchment of a justiciable right to health; exploring early Constitutional Court jurisprudence on this right; turning to the forceful application of this right in relation to government policy on AIDS treatment; and concluding with thoughts about the strengths and limits of this jurisprudence in light of subsequent case-law.

  18. Adam Smith on governance and regulation. An account of his lectures on jurisprudence

    Directory of Open Access Journals (Sweden)

    Pilar Piqué

    2016-12-01

    Full Text Available The present study analyzes a little explored work of Adam Smith: his Lectures on Jurisprudence, understanding it as a "bridge" between his Moral Philosophy and his Political Economy. We show that Smith states in Theory of Moral Sentiments some tensions facing the sympathy once the bonds of affection between members of the same society began to reveal weak. This lead Smith into the study of Jurisprudence, the study of a society of strangers that need a common identification under a State that imposes rules of justice unveiled by science. In his Lectures on Jurisprudence, Smith finds that the division of labor was the result and the ultimate expression of opulence and freedom of humanity. These conduct him to answer why does the division of labor contribute to opulence and why does the division of labor brings about man’s freedom and these two questions ended in the creation of The Wealth of Nations.

  19. Jurisprudence and business management course content taught at accredited chiropractic colleges: A comparative audit.

    Science.gov (United States)

    Gleberzon, Brian J

    2010-03-01

    the purpose of this study was to conduct a comparative audit of the jurisprudence and business management courses offered at a number of different accredited chiropractic colleges. Faculty members responsible for teaching students jurisprudence and/or business management courses at a number of accredited colleges were contacted and asked to electronically submit their course outlines for review. Of the 62 different topics delivered at the 11 chiropractic colleges surveyed, not one topic was taught at all of them. The following topics were taught at 10 of the 11 respondent chiropractic colleges: business plan development; ethics and codes of conduct and; office staff/employees. Several topics were only taught at one accredited chiropractic college. While most chiropractic colleges provide some education in the areas of jurisprudence and business management, it would appear that there is no consensus opinion or 'model curriculum' on these topics towards which chiropractic programs may align themselves. Based on a literature search, this study is the first of its kind. A more extensive study is required, as well as a Delphi process to determine what should be taught to chiropractic students with respect to jurisprudence and business management in order to protect the public interest.

  20. Usury Effect on the Economy in Jurisprudence and Iranian Legal System

    Directory of Open Access Journals (Sweden)

    A. Khorshidian

    2017-06-01

    Full Text Available In Islamic economics, the subject of usury, as one of the pillars of the economy is crucial, which can affect, for direct and indirect economic performance of Islamic countries. This study was conducted with the aim of studying and analyzing the problem of usury, in jurisprudence, law, and economics. In this study, we examined the concept of usury, economics, law, and jurisprudence, and then according to importance, based on the destructive effects of usury, the economic health of the community, this issue has been dealt with. In addition, the study is usury, the legal landscape, and patterns of usury-free banking is also described. The research is theoretical and library research was used to collect information, library resources, articles, books, fundamental research, the authoritative publications, conferences and the internet. The findings of this study, suggestions are presented, with a focus on ways out of usury, and also implement banking without usury.

  1. The ICC’s Witness Protection Measures Through the Lens of Policy-Oriented Jurisprudence

    OpenAIRE

    Kayuni, Steven William

    2015-01-01

    The protection of witnesses from intimidation or harm has become a firmly entrenched part of modern criminal justice systems. The ICC’s decisionmaking with regard to procedural and non-procedural protective measures has on one hand reinforced the integrity and success of the judicial process, while on the other, led to numerous interpretational and applicability challenges of both policy and law. This article aims at designating policy-oriented jurisprudence as a possible theoretical approach...

  2. 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.

  3. Restructuring of the jurisprudence course taught at the Canadian Memorial Chiropractic College

    Science.gov (United States)

    Gleberzon, Brian J.

    2010-01-01

    Introduction: The process by which the jurisprudence course was restructured at the Canadian Memorial Chiropractic College is chronicled. Method: A Delphi process used to restructure the course is described, and the results of a student satisfaction survey are presented. Results: When asked “I think this material was clinically relevant,” over 81% of the 76 students who respondents strongly agreed or agreed with this statement; 100% of students agreed or strongly agreed that scope of practice; marketing, advertising and internal office promotion; record keeping; fee schedules; malpractice issues and; professional malpractice issues and negligence was clinically relevant. When asked “I think this material was taught well,” a minimum of 89% of students agreed or strongly agreed with this statement. Discussion: This is the first article published that described the process by which a jurisprudence course was developed and assessed by student survey. Summary: Based on a survey of student perceptions, restructuring of the jurisprudence course was successful in providing students with clinically relevant information in an appropriate manner. This course may serve as an important first step in development a ‘model curriculum’ for chiropractic practice and the law courses in terms of content, format and assessment strategies. PMID:20195427

  4. The Extension of Jurisprudence: Constitutional Supports, Effects, and Controversial Aspects in its Application

    Directory of Open Access Journals (Sweden)

    Mario Aguilera-Martin

    2017-06-01

    Full Text Available The constitutionalization of Law has led to an increase protection of citizen rights by the Public Administration. As means of a higher level of protection, Act 1437 of 2011 introduces the procedure of the ‘extension of jurisprudence’, which entitles citizens to request administrative agencies to apply to their individual case the same standard of protection that was awarded in a prior judicial decision, when that decision constitutes a unified precedent, and when both cases have identical legal and factual grounds. This article examines, with the aid of the jurisprudence of the Council of State, the origins, reach and controversial aspects surrounding this innovative legal procedure.

  5. 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.)

  6. The normative power of the international commission of radiation protection on the approval of the international and communal jurisprudence

    International Nuclear Information System (INIS)

    Lajoinie, O.

    2006-01-01

    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.)

  7. 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 underpinning…

  8. Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact

    Directory of Open Access Journals (Sweden)

    Jessica White

    2016-03-01

    Full Text Available In this paper we briefly focus on intimate partner sexual violence (IPSV and the Australian legal response, using recent Court judgements and Heather Wishik’s feminist jurisprudence framework for inquiry to guide investigation. The key questions being asked are: (1 What have been and what are now all women’s experiences of IPSV addressed by the substance and process of rape law? (2 What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? (3 What is the area of mismatch, distortion or denial created by the differences between women’s life experiences of IPSV coercion and the law’s assumptions or imposed structures? (4 What patriarchal interests are served by the mismatch? The paper concludes with consideration of the limitations and benefits of law reform by reflecting on the findings of the paper.

  9. International jurisprudence on trade and environmental health: one step forward, two steps back?

    Science.gov (United States)

    Timmermans, Karin

    2008-01-01

    Since the creation of the World Trade Organization (WTO), there has been considerable debate regarding the impact of its rules on public health. By contrast, the role of the WTO dispute settlement mechanism has received little attention, even though the bodies responsible for settling disputes are the ultimate interpreters of WTO rules and agreements. To date, three WTO disputes that relate to occupational and/or environmental health have been fully litigated. A review of the decisions and reasoning in these cases indicates that WTO jurisprudence is evolving, as Panels and the Appellate Body try--with varying degrees of success--to balance countries' rights and obligations under international trade agreements with their right to protect occupational and environmental health. Disputes between nations can have an impact beyond the parties concerned, and raise questions about the relationship between trade agreements and other international agreements, especially multilateral environmental agreements (MEAs).

  10. Paths toward reclamation: therapeutic jurisprudence and the regulation of medical practitioners.

    Science.gov (United States)

    Freckelton, Ian; Flynn, Joanna

    2004-08-01

    Much about what used to be termed "disciplinary" investigations and hearings is being revisited in the modern era. Therapeutic jurisprudence enables informed and sensitive awareness to potentially therapeutic and counter-therapeutic effects of both investigations and hearings conducted by medical regulatory authorities. This article analyses key aspects of authorities' processes from the perspective of notifiers/complainants and practitioners. Using developments at the Victorian Medical Practitioners Board as a base, it addresses issues of both investigative procedures and decision-making at formal and informal hearings, as well as the ramifications of re-hearings for the integrity of peer review informed regulation. It argues that where reclamation of practitioners is possible (namely where impropriety is not of the most serious order), there is much that is constructive about a focus upon enhancement of performance and competence levels, rather than the traditional preoccupation with whether registered status needs to be affected as a result of practitioner conduct.

  11. ECJ judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence

    DEFF Research Database (Denmark)

    Blauberger, Michael; Heindlmaier, Anita; Kramer, Dion

    2018-01-01

    . While the ECJ extended EU citizens’ rights even against strong opposition by member state governments, its recent shift reflects changes in the broader political context, i.e. the politicisation of free movement in the European Union (EU). The article theorizes Court responsiveness to politicisation......Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens’ rights. The Court’s turnaround is not only highly relevant for practical debates about ‘Social Europe’ or ‘welfare migration’, but also enlightening from...... a more general, theoretical viewpoint. Several recent studies on the ECJ have argued that the Court is largely constrained by member state governments’ threats of legislative override and non-compliance. We show that an additional mechanism is necessary to explain the Court’s turnaround on citizenship...

  12. Professional responsibility in elder law: a synthesis of preventive law and therapeutic jurisprudence.

    Science.gov (United States)

    Stolle, D P

    1996-01-01

    This article focuses on the professional responsibilities that a lawyer owes to older clients. Specifically, this article proposes that when working with older clients, lawyers have a responsibility to ensure that their clients have the capacity to manage their own affairs and to ensure their clients' legal, financial, and personal interests are protected in case of sudden future incapacity. Furthermore, a lawyer working with older clients has a responsibility to remain cognizant of the realities of ageing without giving in to the falsities of senior citizen stereotypes. Through an integration of Therapeutic Jurisprudence and Preventive Law, a proactive, client-centered, four-stage framework for advancing therapeutic goals through preventive lawyering is developed. The framework is then applied to a model lawyer/client interaction typical of elder practice. The advantages and limitations of the four-stage framework are discussed.

  13. The effectiveness of clinical problem-based learning model of medico-jurisprudence education on general law knowledge for Obstetrics/Gynecological interns.

    Science.gov (United States)

    Chang, Hui-Chin; Wang, Ning-Yen; Ko, Wen-Ru; Yu, You-Tsz; Lin, Long-Yau; Tsai, Hui-Fang

    2017-06-01

    The effective education method of medico-jurisprudence for medical students is unclear. The study was designed to evaluate the effectiveness of problem-based learning (PBL) model teaching medico-jurisprudence in clinical setting on General Law Knowledge (GLK) for medical students. Senior medical students attending either campus-based law curriculum or Obstetrics/Gynecology (Ob/Gyn) clinical setting morning meeting from February to July in 2015 were enrolled. A validated questionnaire comprising 45 questions were completed before and after the law education. The interns attending clinical setting small group improvisation medico-jurisprudence problem-based learning education had significantly better GLK scores than the GLK of students attending campus-based medical law education course after the period studied. PBL teaching model of medico-jurisprudence is an ideal alternative pedagogy model in medical law education curriculum. Copyright © 2017. Published by Elsevier B.V.

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

    OpenAIRE

    Oana Maria HANCIU

    2015-01-01

    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 ...

  15. Lineage and the rights of cloned child in the islamic jurisprudence.

    Science.gov (United States)

    Moeinifar, Mohaddeseh; Ardebeli, Faezeh Azimzadeh

    2012-10-01

    Lineage in the Islamic law is one of the most basic human rights each individual inherits from his family. When modern assisted reproductive technologies appeared in recent decades, the issue of lineage and the child's rights did not encounter serious challenges. But with the advent of these technologies, the issue of the child's lineage resulting from new technologies has become the center of attention. These technologies have a large share in the field of medicine. A new technique known as cloning has entered the realm of science and technology. Considering the possibility of the widespread use of this technique, the subject of cloned child's lineage and his/her rights would be one of the major issues related to this subject. In this paper, the authors have examined the various aspects of the subject and the opinions of theologians in this regard in order to present a best solution to this issue. In fact, the fundamental concern in this paper is to figure out the relationship between the cloned child, the cell donor, the egg donor and the owner of the uterus. In this paper, after considering the concepts of the parentage and identical twins' relationship would be explored and then a detailed analysis of the parental relationship and the Shiite jurisprudence scholars' opinion on these issues would be presented. Finally, the rights of cloned children would be taken into consideration.

  16. 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.

  17. 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. (c) 2014 APA, all rights reserved.

  18. Examining the links between therapeutic jurisprudence and mental health court completion.

    Science.gov (United States)

    Redlich, Allison D; Han, Woojae

    2014-04-01

    Research demonstrates that mental health courts (MHCs) lead to improved outcomes compared to traditional criminal court processes. An underlying premise of MHCs is therapeutic jurisprudence (TJ). However, no research, to our knowledge, has examined whether MHC outcomes are predicted by TJ principles as theorized. In the present study, we examined whether principles measured at the onset of MHC enrollment (knowledge, perceived voluntariness, and procedural justice) predicted MHC completion (graduation). Using structural equation modeling with MHC participants from four courts, a significant, direct relationship between TJ and MHC completion was found, such that higher levels of TJ were associated with higher rates of success. Although this direct effect became nonsignificant when mediator variables were included, a significant indirect path remained, such that increased levels of initial perceived voluntariness and procedural justice, and MHC knowledge, led to decreased rates of new arrests, prison, MHC bench warrants, and increased court compliance, which, in turn, led to a higher likelihood of MHC graduation. PsycINFO Database Record (c) 2014 APA, all rights reserved.

  19. Cloning: A Review on Bioethics, Legal, Jurisprudence and Regenerative Issues in Iran

    Science.gov (United States)

    Nabavizadeh, Seyedeh Leila; Mehrabani, Davood; Vahedi, Zabihallah; Manafi, Farzad

    2016-01-01

    In recent years, the cloning technology has remarkably developed in Iran, but unfortunately, the required legal framework has not been created to support and protect such developments yet. This legal gap may lead to abuse of scientific researches to obtain illegal benefits and to undermine the intellectual property rights of scientists and researchers. Thus to prevent such consequences, the attempts should be made to create an appropriate legal-ethical system and an approved comprehensive law. In this review we concluded that the right method is guiding and controlling the cloning technology and banning the technique is not always fruitful. Of course, it should be taken into accounts that all are possible if the religion orders human cloning in the view of jurisprudence and is considered as permission. In other words, although the religious order on human cloning can be an absolute permission based on the strong principle of permission, it is not unlikely that in the future, corruption is proved to be real for them, Jurists rule it as secondary sanctity and even as primary one. If it is proved, the phenomenon is considered as example of required affairs based on creation of ethical, social and medical disorders, religious and ethical rulings cannot be as permission for it, and it seems that it is a point that only one case can be a response to it and it needs nothing but time. PMID:27853684

  20. DINAMIKA ARAH KEPASTIAN HUKUM DI TENGAH TRANSFORMASI SOSIAL-BUDAYA DALAM PERSPEKTIF PEMIKIRAN MAZHAB SOCIOLOGICAL JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    B. Wibowo Suliantoro

    2017-03-01

    Full Text Available The simultaneous process of social-culture transformation emerges a complex problematic in the sector of law; especially it is related with the law certainty. The clash of values occurred intensively and extensively fixes a polemic whether the law must be stable or is always in changing. The law that is always in changing will leave a certainty as an essential character of law. On the contrary, the law that stable in its nature will turn up a problem, it will not accommodate the internal dynamic. The sect of Sociological Jurisprudence, in its effort tries to formulate a harmonious synthesis by positing the significant meaning of customary law and the written constitution as a tool of social live arrangement in order to manage it better. The certainty of law will be achieved throughout continuous dialog process between rationality and experience, between fact that happen in the social life and the ideal normative of juridical values those are formulated in constitution. The certainty of law can be approached properly if it is supported by professional lawyer apparatus that has high moral integrity. The task of judge is not only to be speaker of constitution but also to enforce the justice. Therefore, the law enforcer should has sensitive feeling in understanding the phenomena of social justice that is desired by society, formulating the social justice in the constitution, and implementing the constitution wisely.

  1. Psychological jurisprudence as an interdisciplinary science and the area of psychological practice

    Directory of Open Access Journals (Sweden)

    Pozdnyakov V. M.

    2017-04-01

    Full Text Available The article convincingly demonstrates that Russia is increasingly began to publish monographs lawyers on key legal and psychological phenomena, and in dissertations in the formulation of the provisions on the protection of delatsya criticism of "Westernization" of the state legislation and upheld psychologicaland position. At the same time, critically, it is noted that in the field of legal ideology and policies, and in making innovations in the law still, as in Soviet period, dominated by legal dogma, and psychological realities are taken into account in fragments. The reason for this state of Affairs is that still within the framework of University training and further education of local lawyers, in contrast to international practice, insufficient attention is paid to the development of psychological culture, but in the end no full-fledged dialogue between lawyers and psychologists. Taking into account possibilities of integrative methodology justified the subject of psychological law as an interdisciplinary science and the field of psychological practice focused on the identification of regularities and mechanisms of development of legal awareness and legal existence of various actors in the legal activity aimed at the development of psychologically informed interventions for the improvement of legal ideology and politics, systems of law-making, law enforcement and crime prevention, psycho-technical methods and techniques in activities of law enforcement officials. For constructive development of psychological jurisprudence identified the key areas of research and nodal practicerelevant problems.

  2. Informational Self-Determination and Data Protection: A Critical Analysis of the Brazilian Jurisprudence

    Directory of Open Access Journals (Sweden)

    Rafael Copetti

    2015-12-01

    Full Text Available The study, from the hypothetical-deductive method, aims to perform a rereading of the way that the Brazilian jurisprudence has been interpreting the concept of privacy in the storage and sharing of citizens information in the current technological stage of society. Initially, it is studied the origin of personal data protection and the definition of the term privacy. Next, it is conducted a case study based on two decisions of the Court of Justice of Rio Grande do Sul, as well as a decision of the Superior Court of Justice which served as the paradigm for issues related to credit scoring system. Then, are analyzed the foundations that served as motivation for the decisions in comparison to conceptions that give support for the protection of personal data. At the end, it is possible to realize that the Courts have a mistaken view concerning the possibility of storage and commercialization of consumers database, being necessary a review of the positions mentioned.

  3. 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.

  4. Cloning: A Review on Bioethics, Legal, Jurisprudence and Regenerative Issues in Iran.

    Science.gov (United States)

    Nabavizadeh, Seyedeh Leila; Mehrabani, Davood; Vahedi, Zabihallah; Manafi, Farzad

    2016-09-01

    In recent years, the cloning technology has remarkably developed in Iran, but unfortunately, the required legal framework has not been created to support and protect such developments yet. This legal gap may lead to abuse of scientific researches to obtain illegal benefits and to undermine the intellectual property rights of scientists and researchers. Thus to prevent such consequences, the attempts should be made to create an appropriate legal-ethical system and an approved comprehensive law. In this review we concluded that the right method is guiding and controlling the cloning technology and banning the technique is not always fruitful. Of course, it should be taken into accounts that all are possible if the religion orders human cloning in the view of jurisprudence and is considered as permission. In other words, although the religious order on human cloning can be an absolute permission based on the strong principle of permission, it is not unlikely that in the future, corruption is proved to be real for them, Jurists rule it as secondary sanctity and even as primary one. If it is proved, the phenomenon is considered as example of required affairs based on creation of ethical, social and medical disorders, religious and ethical rulings cannot be as permission for it, and it seems that it is a point that only one case can be a response to it and it needs nothing but time.

  5. 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.

  6. Correção Legislativa da Jurisprudência: uma análise das Emendas Constitucionais em matéria tributária / Legislative correction of Jurisprudence: an analysis of Constitutional Amendments in tax matters

    OpenAIRE

    Antonelli, Leonardo

    2014-01-01

    DOI: 10.12957/rqi.2014.10693Trabalho enviado em 11 de fevreiro de 2014. Aceito em 25 de março de 2014. Resumo: A presente monografia busca oferecer um panorama sobre a correção legislativa da jurisprudência, que é o fenômeno que ocorre quando o Congresso reage e, por meio de emenda constitucional, lei complementar ou ordinária, modifica conscientemente determinada interpretação judicial, fazendo com que a decisão final sobre determinado assunto controvertido não tenha o seu fim no âmbito do J...

  7. Knowledge of dental ethics and jurisprudence among dental practitioners in Chennai, India: A cross-sectional questionnaire study

    Directory of Open Access Journals (Sweden)

    R Kesavan

    2016-01-01

    Full Text Available Introduction: Ethics is a science of ideal human character and behavior in situations where the distinction should be made between what is right and wrong. Dental jurisprudence is a set of legal regulations set forth by each state's legislature describing the legal limitations and regulations related to the practice of dentistry. Objectives: (1 To assess the dental practitioners' awareness about dentists (Code of Ethics regulation and jurisprudence. (2 To assess the awareness of dentists regarding Consumer Protection Act (COPRA and its implications in dentistry. Materials and Methods: A cross-sectional questionnaire survey was conducted. A pilot study was conducted to validate the questionnaire and to get the required sample size which was 346. A specially designed questionnaire consisting of 24 close-ended questions divided into two sections was used. The resulting data were coded, and statistical analysis was done using Statistical Package for Social Sciences (SPSS software version 17.0. Results: The results showed that about 65% of the dentists were aware that the Dentist Act was given in the year 1948 and 76% knew that the dentists (Code of Ethics regulation was given by the Dental Council of India. Only 33% knew that it is not unethical for a dental surgeon to supply or sell drugs related to dentistry in his clinic. Only 31% responded correctly that it is not necessary to obtain informed consent for clinical examination and routine radiography. Nearly, half of the respondents (43% were not aware of professional indemnity insurance. Conclusion: The study concludes that majority of the dental practitioners are aware of dental ethics but their knowledge on jurisprudence and COPRA needs to be enriched. Although recommendations can be made to the dental profession to alter their behavior, real improvement is unlikely without changes in legislation and social policy.

  8. Theoretical and Practical Issues Around The Types of Non-Pecuniary Damages Recognized by the Colombian Jurisprudence

    Directory of Open Access Journals (Sweden)

    Laura Anaya-Quintero

    2017-06-01

    Full Text Available This book under review examines current relations between equity and compensable damages, since in the definition of these damages the equity plays a critical role. Through an analysis of recent decisions of both the Supreme Court of Justice and the Council of State on the typologies and reparation of non-pecuniary damages, the author deduces that, in some cases, guidelines applied by both Tribunals go against the equity and integral reparation rules. This book review exposes, comments and completes Professor M’Causland’s thesis, by showing weaknesses in the existing jurisprudence, while renewing a well-known debate around the judicial recognition of non-pecuniary damages.

  9. The Comparative Jurisprudence of Wildfire Mitigation: Moral Community, Political Culture, and Policy Learning

    Directory of Open Access Journals (Sweden)

    Lloyd Burton

    2013-04-01

    Full Text Available The cultural and societal diversity in the jurisprudence of living dangerously reflects equally diverse views on the deeper question of law’s moral purpose. What duty of care does (or does not a community owe to those at the greatest risk of harm to their homes and persons? And is there also a right to be left alone—to assume all the risks and all the responsibilities for one’s own well-being, neither helped nor hindered by the community of which one is a part?This article reports comparative research being done on two states in the U.S. that have used the law to answer these morally freighted questions in very different ways, with specific regard to land use regulation in forested areas where wildfires have taken many lives and destroyed billions of dollars in residential property. It also suggests how this same analytic framework might be applied to transnational research in other legal cultures also endangered by catastrophic wildfires, such as Australia and Spain. La diversidad cultural y social en la jurisprudencia de los lugares en los que se vive bajo un peligro refleja equitativamente diferentes opiniones sobre el propósito moral de la ley, un tema más profundo. ¿Qué obligación tiene (o no una comunidad de ofrecer atención a aquellos individuos en mayor riesgo de sufrir daños sobre sus hogares o personas? ¿Y existe también el derecho a que cada uno asuma todos los riesgos y todas las responsabilidades sobre su propio bienestar, sin que le ayude, o le moleste, la comunidad de la que forma parte?Este artículo presenta una investigación comparativa desarrollada en dos estados de EE.UU. que han utilizado la ley de manera muy diferente, para responder a estas preguntas de gran carga moral, con especial referencia a la regulación del uso de la tierra en zonas donde los incendios forestales han causado muchas víctimas personales además de pérdidas de millones de dólares en propiedades residenciales. También sugiere que

  10. The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?

    NARCIS (Netherlands)

    K.A.M. Henrard (Kristin)

    2016-01-01

    textabstractThis article argues that it is no longer tenable to qualify the Court's non-discrimination jurisprudence overall as ‘poor’. Indeed, a different speed of development is noted for the ‘prohibition of invidious discrimination’ track and the ‘duties of differential treatment’ track. In cases

  11. To Fight Against the Defensive Jurisprudence with the New Civil Procedure Code: Yes, We Can! Or Can We?

    Directory of Open Access Journals (Sweden)

    Rafael Ambrósio Gava

    2016-10-01

    Full Text Available In order to reduce their workloads, Brazilian Courts have been landing many precedents that lead to unwarranted restrictions to the right to appeal, thereby belittling the fundamental constitutional right to access to justice. Despite the existence of studies on this "defensive jurisprudence", there are still few who analyze it in the light of the new Civil Procedure Code (Law 13.105/2015, which is about to enter into force. This article aims to evaluate the suitability of the new CPC to remedy this adjudicative problem or at least minimize it. We demonstrated, based on literature and through a deductive argumentative reasoning, that the new procedural law contains a number of specific and general legal clauses which may be used as instruments able to curb the adjudicate "defensiveness. Nonetheless, the achievement of this goal will depend largely on how this legal clauses are to be interpreted and applied.

  12. The Jurisprudence and Legal Review of the Effect of Promise Fulfillment in Sustainable Development of Islamic Community with Comparative Study

    Directory of Open Access Journals (Sweden)

    Nasser Hasan Delgoshamehr

    2017-04-01

    Full Text Available One of the problems in different countries including Iran is contracts breach and termination of securities contrary to the ethics. If this process is not resolved via trust and negotiation, two parties refer to legal courts and this increases the legal cases and costly operation, legal procedure, different social problems, property loss that are sold by paltry price in the bids and this is not compensated sometimes. This study evaluates promise fulfillment from jurisprudence and legal aspects and its effect is explained in the sustainable development of Islamic community. Also, promise fulfillment shows high level of human character and ignoring this element leads to loss and this is evaluated with a comparative evaluation in this study.

  13. Jurisprudência do crime de tortura nos tribunais de justiça do Brasil (2005-2010

    Directory of Open Access Journals (Sweden)

    Maria Gorete Marques de Jesus

    2016-01-01

    Full Text Available O presente artigo apresenta o resultado da pesquisa: Julgando a tortura: Análise de Jurisprudência nos Tribunais de Justiça do Brasil (2005-2010,[1] que buscou colher dados dos acórdãos proferidos pelos Tribunais de Justiça de todos os Estados do Brasil em processos judiciais relativos ao crime de tortura. A partir desse material empírico, foi possível obter informações presentes nos acórdãos, tais como: o perfil do acusado e da vítima, local da tortura, propósito da tortura, argumentos das decisões e relação entre a decisão de primeiro e segundo graus. Conhecer os casos que chegam aos Tribunais de Justiça e analisar como eles são julgados foram uns dos principais objetivos desse levantamento. Cabe destacar que, diante da notória deficiência e ausência de dados sobre tortura no Brasil, essa pesquisa se torna ainda mais relevante.[1] A pesquisa foi iniciada em maio de 2011, encerrou-se em janeiro de 2015 e teve como objetivos: construir um banco de dados de jurisprudência de tortura a partir de acórdãos coletados nos Tribunais de Justiça (TJs dos estados brasileiros, analisar as decisões e compará-las. O relatório completo foi publicado em janeiro de 2015 e encontra-se disponível em: https://issuu.com/julgandoatortura

  14. 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. © The Author(s) 2014.

  15. 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.

  16. 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.

  17. Faurisson, « falsificateur de la jurisprudence » ? Faurisson, “Falsifier of the Case Law”?

    Directory of Open Access Journals (Sweden)

    Thomas Hochmann

    2011-10-01

    Full Text Available Pendant vingt-cinq ans, le négationniste Robert Faurisson s’est prévalu de la maladroite motivation d’un arrêt rendu par la cour d’appel de Paris en 1983. Il revendiquait à tort cet arrêt comme une consécration du sérieux de ses thèses, et poursuivait en l’invoquant ceux qui le décrivaient comme un faussaire de l’histoire. De la sorte, il a permis à la jurisprudence ultérieure de remédier à l’ambiguïté de cet arrêt. La présente étude retrace l’histoire de la démonstration progressive de l’inadéquation de l’interprétation faurissonienne de l’arrêt, qui culmina en 2007 dans le jugement déboutant Faurisson de sa plainte en diffamation contre Robert Badinter.During twenty-five years, Holocaust denier Robert Faurisson boasted of a 1983 decision by the Court of Appeal of Paris that, he alleged, paid tribute to his work and described it as scientific. This erroneous interpretation of the decision led him to invoke it while suing the numerous individuals who described him as a falsifier of history. This gave courts the opportunity to correct the clumsy grounds put forward in the 1983 decision and to expose the falsity of Faurisson’s reading of it. This process reached its climax in the libel judgment in favour of former lawyer and Minister of Justice Robert Badinter. This article recounts this story.

  18. The Theoretical course of the Good Faith Principle of Jurisprudence and its Reception in Civil Law Brazilian

    Directory of Open Access Journals (Sweden)

    Rosalice Fidalgo Pinheiro

    2016-06-01

    Full Text Available The scope of this article is to demonstrate how the good-faith principle moved away from the formalism into which is was embedded under the aegis of legal positivism of the 19th century, to become the object of jurisprudential creation without, however, totally departing from a certain positivistic rationality.  Restricted to the parameters of forma- lism, it has shown to be too imprecise to be included in a syllogistic way of thinking, which demanded juridical methodology efforts in face of the legislative technique of ge- neral clauses, standards and juridical principles in order to delimit its area of application.  Here is what German courts in the post-war second period achieved; the concretization of the general clause of good-faith into typical legal concepts, the exercise of which re- mains inadmissible: exceptio doli generalis, venire contra facum proprium, Verwirkung, tu quoque, non allegeability of formal nullity, and the unbalanced exercise of rights.  We have limited the topic of this article to the function of good-faith control in the exercise of individual prerogatives in the area of economics, and found that the concept is included in other legal systems that lacked it.  Having chosen to investigate the concept of good- faith in Brazilian jurisprudence, we have submitted the results to critical examination, revealing the specificity of the European juridical tradition in our own Law.  Lastly, we question the limits of a “prêt-a-porter” good-faith to maintain juridical positivism.

  19. Using therapeutic jurisprudence and preventive law to examine disputants' best interests in mediating cases about physicians' practices: a guide for medical regulators.

    Science.gov (United States)

    Ferris, Lorraine E

    2004-01-01

    Therapeutic jurisprudence (TJ) and preventive law (PL) are used as two theoretical perspectives from which to examine the best interests of parties in mediation because of a dispute about a physician's practice. The focus is mediation provided by and/or for the medical regulator. The paper reviews the literature on TJ and PL, and their relationship to mediation, and demonstrates how medical regulators could benefit by working within a framework reflecting both these perspectives providing it does not involve an egregious matter. A TJ and PL framework would be of particular value in identifying cases for mediation and in evaluating resolutions to mediated disputes.

  20. John Porter Book Prize Lecture: Bringing the Social Back In-On the Integration of Muslim Immigrants and the Jurisprudence of Muslim Minorities.

    Science.gov (United States)

    Kazemipur, Abdolmohammad

    2016-11-01

    In much of the academic debate on the integration of Muslims into Western liberal democracies, Islam is often treated as one or the sole independent variable in the lives of Muslims. Offering to view Islam-or the understanding of Islam among Muslims-as the dependent variable, The Muslim Question in Canada discusses the influence of socioeconomic forces in shaping the Muslim immigrants' opinions, modes of thinking, and even interpretations of their faith. Drawing on this general approach, which is introduced and developed in the book using a variety of both quantitative and qualitative data, this article focuses on a school of thought within the Islamic jurisprudence known as fiqh al-aqalliyyat al-Muslema (the jurisprudence of Muslim minorities). The premise of the jurisprudence of Muslim minorities is that the lived realities of Muslims who reside in non-Muslim countries are so fundamentally different from those of the Muslim-majority nations that traditional Islamic jurisprudence cannot offer meaningful solutions for their problems. Therefore, there is a need to establish an entirely different jurisprudential approach centered around the lives of the Muslim minorities. The purpose of the bulk of jurisprudential theorization efforts in this line of reasoning is to facilitate the lives of the Muslim minorities; as well, they aim to create a foundation for the moral obligations of Muslims toward non-Muslims in such environments. I argue that a crucial element that triggers such a development is the existence of a positive relationship between Muslims and non-Muslims in immigrant-receiving countries. Souvent au sein des débats sur l'intégration des Musulmans dans des démocraties libérales de l'Ouest, l'Islam est traité comme un ou le seul enjeu dans la vie des fidèles. The Muslim Question in Canada examine l'Islam ou la compréhension de l'Islam chez les Musulmans comme un enjeu dépendent et aborde l'influence des forces socio-économiques sur les opinons des

  1. Do Reconhecimento de Estado e de Governo no Direito Internacional: considerações sobre a evolução do tema na jurisprudência e prática internacional

    Directory of Open Access Journals (Sweden)

    Tatiana Waisberg

    2011-09-01

    Full Text Available O artigo aborda o tema do reconhecimento de Estado e de governo no Direito Internacional sob a perspectiva da jurisprudência e prática internacional.  São apresentados três estágios evolutivos referentes ao assunto, com o objetivo de demonstrar as principais características de cada um deles, e delinear os contornos da prática e jurisprudência internacional relativa ao reconhecimento de Estado e de governo no contexto pós-guerra fria.   This article approaches the subject related to the recognition of states and governments in International Law from a jurisprudential and state practice perspective. It is presented three stages of evolution of this issue in order to describe its main characteristics, and to trace the outline of jurisprudence and state practice related to the recognition of states and government in the post-cold war context.

  2. 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.

  3. SOCIOLOGICAL JURISPRUDENCE: ROSCOE POUND'S ...

    African Journals Online (AJOL)

    eliasn

    Introduction. Having started to introduce the vast body of theories that make up the ... the first group, they rather are more concerned with ethnological interpretation – ... identifiable in a lot of the older jurisprudential theory of insisting upon one.

  4. "Too stubborn to ever be governed by enforced insanity": Some therapeutic jurisprudence dilemmas in the representation of criminal defendants in incompetency and insanity cases.

    Science.gov (United States)

    Perlin, Michael L

    2010-01-01

    Little attention has been paid to the importance of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable, and is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. This paper examines the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. It considers why the lack of attention that I have referred to already is surprising (given TJ's mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). The paper then considers why this lack of attention is not surprising, given the omnipresence of sanism. It will consider some of the actual counseling issues that might arise in these contexts, and offer some suggestions to lawyers representing clients in cases in which mental status issues may be raised. The paper concludes that we must rigorously apply therapeutic

  5. 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.

  6. LA NOTION DE TORTURE, DE TRAITEMENTS INHUMAINS ET DEGRADANTS DANS LA JURISPRUDENCE DE LA COUR EUROPEENNE DES DROITS DE L’HOMME

    Directory of Open Access Journals (Sweden)

    Jean-Paul Céré

    2017-03-01

    Full Text Available En vertu de l'article 3 de la Convention européenne de sauvegarde des droits de l'homme, les Etats ne peuvent ni pratiquer la torture ni infliger des traitements inhumains ou dégradants. Le particularisme de cette convention par rapport aux autres textes internationaux ou régionaux relatifs aux droits de l’homme réside indéniablement dans le système de protection existant qu’elle a organisé. Un organe juridictionnel, la cour européenne des droits de l’homme, est en charge de sanctionner les Etats qui ne respectent la Convention. Au terme d’une jurisprudence novatrice et évolutive, la cour européenne des droits de l’homme impose de plus en plus efficacement de lutter contre la torture, les traitements inhumains et dégradants.

  7. 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

  8. "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. Copyright © 2014 Elsevier Ltd. All rights reserved.

  9. 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.

  10. 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. Copyright © 2010 Elsevier Ltd. All rights reserved.

  11. MAIN FEATURES OF LEGAL AND JUDICIAL POLITICS OF APPLICATION OF JUVENILE IMPRISONMENT IN BOSNIA AND HERZEGOVINA AND COMPARATIVE CRIMINAL LAW AND JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Vedad Gurda

    2015-01-01

    Full Text Available Considering that in the spectrum of juvenile criminal sanctions punishment of deprivation of liberty is the most severe criminal sanction, international documents related to juveniles in conflict with the law proclaim standards that this sanction has to be imposed only as a measure of last resort and for the shortest period. Issues like possible duration of subject sanction and scope of its imposition, represents some of the basic features of the legal and judicial policy of sanctioning of juveniles, and represent the subject of this paper. The author analyzes how these issues are regulated in Bosnia and Herzegovina“s and comparative law, and how aforementioned standards are applied in practice. Applying the comparative analysis it was determined that there are certain indicators that Bosnia and Herzegovina is one of the countries that has in its heritage „humane“ sanctioning policy of juvenile offenderes, and that the aforementioned international standards are consistently accepted in domestic law as well as in the jurisprudence.

  12. HUMAN SMUGGLING AND TRAFFICKING IN CROATIAN CRIMINAL LEGISLATION AND JURISPRUDENCE (analysis of the situation de lege lata with proposals de lege ferenda

    Directory of Open Access Journals (Sweden)

    Vanda Božić

    2015-01-01

    Full Text Available The author of the paper provides an overview and analysis of Croatian criminal legislation with regard to criminal activities of human smuggling and trafficking. She points out to the similarities and differences between the criminal acts of illegal transfer of persons across the state border or illegal entering, movement and residence in the Republic of Croatia, other EU Member States or signatories of the Schengen Agreement and human trafficking, comparing and analyzing the legal norms of the old and the new Criminal Code of the Republic of Croatia, international instruments and jurisprudence. Emphasized is the importance of early recognition of the criminal act, especially for the victims. Attention is drawn to the disparity of case law on matters of personal gain as an essential element of this criminal activity, but also to the absence of clearly defining the act of attempting illegal entering, movement and residence in the Republic of Croatia, other EU Member States or signatories of the Schengen Agreement. This paper investigates and analyzes the current situation regarding illegal crossing of state borders of the Republic of Croatia on the basis of available statistical data. Conducted was the analysis of the situation de lege lata in case law in relation to persons registered, accused and convicted of human smuggling and, also, especially for human trafficking. In conclusion, given are the proposals and measures de lege ferenda that need to be implemented in order to combat human smuggling and trafficking, and to successfully fight this type of organized crime.

  13. THE ROLE OF THE EUROPEAN COMMITTEE FOR SOCIAL RIGHTS (ECSR IN THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS. INTERACTIONS WITH ECHR JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Cristina Sâmboan

    2013-11-01

    Full Text Available Upon its foundation in 1961, the European Committee for Social Rights (ECSR was meant to be a counterpart of the European Court of Human Rights (ECHR in the field of economic, social and cultural rights, i.e. an international body of control regarding the manner in which states understand to respect human rights. But, given the fastidious contents of ESCR and for political reasons, ECSR has never enjoyed the same guarantee mechanisms or level of accessibility that have characterized ECHR. The aim of this study is to show that, in spite of such flaws, the ECSR has proven its efficiency in the European system for the protection of human rights. The analysis of its decisions, as well as their interactions with the ECHR jurisprudence proves that the flexible and protectionist decisions of this jurisdictional body command authority and their coercive nature is recognized at national level. Moreover, this body has an important influence on ECHR. The jurisprudential interpretations of ECSR may also serve as reference points for national users (lawyers, magistrates, organizations, which makes it even more necessary to know and understand it at this level.

  14. "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.

  15. 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.

  16. 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)

    Arndt, Hans-Wolfgang

    2012-01-01

    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.

  17. Facteurs influençant la multiplication de traitements en physiothérapie: une analyse thématique de la jurisprudence québécoise

    Directory of Open Access Journals (Sweden)

    Laliberté, Maude

    2017-04-01

    Full Text Available Physical therapy is affected by a problem of multiplication of treatments; the frequency and the length of treatments can be inappropriate or disproportionate in the face of a patient’s needs. The multiplication of treatments can have financial, physical, psychological and social consequences. To explore the factors that influence the frequency and the total treatment duration in situations where there is a multiplication of treatments, a thematic analysis of the jurisprudence was conducted. Clinical and non-clinical factors influencing the frequency and the treatment duration were identified. Clinical factors mean that resource allocation is guided by the condition and the evolution of the patient. Non-clinical factors can include: pressure from the employer, requests of other health professionals or financial conflict of interests. This thematic analysis of the jurisprudence is a first step to understanding what motivates the clinical decisions of physical therapists regarding the allocation of physical therapy resources. This approach is essential to establishing policies and standards of practice that are attentive to the context of practice and the ethical, deontological and legal standards that shape the profession.

  18. Mechanisms for the proximity between the perspectives of the Shiite jurisprudence and the International Human Rights System regarding Corporal Punishment of Children

    Directory of Open Access Journals (Sweden)

    Seyed Javad Hoseynikhah

    2011-11-01

    Full Text Available One of the challenging issues which families and societies face in rearing and upbringing is how to treat children’s misbehavior In Islamic perspective, especially Shiite jurisprudence, which is considered to be the main source of legislation in the Islamic republic of Iran, in addition to paying special attention to children’s education and their development and happiness, much emphasis has been put on their dignity, being kind to them, their expedience, preventing any harm and injury to them. Also, it is prohibited to punish and abuse them. However, in some cases corporal punishment of children is permissible and permitted because of their expedience. On the contrary, the international human rights system seeks to eliminate the use of all forms of corporal punishment from all societies. Using different types of instruments and documents, it tries to promote this view. It considers corporal punishment as being against the child’s human dignity and physical integrity. Furthermore, sometimes it is considered inhumane, cruel and humiliating. Therefore, initially and apparently, the two approaches appear to be contradictory. Thus, we try to explain the true nature of the two approaches and to provide some solutions for their proximity considering the interests of the society as well as children's expedience, interests, education, rights and development. از جمله‌ی مسائل حسّاس و مهمّ تربیتی که خانواده‌ها و جوامع بشری دچار آن هستند، چگونگی برخورد با اعمال و کردارهای ناروای کودکان است. در دیدگاه اسلامی و به خصوص فقه سترگ شیعه که در کشور ما منبع الهام‌بخش جهت قانونگذاری محسوب می‌گردد، علاوه بر توجّه خاص به امور تربیتی کودکان و رشد و سعادت آنان، بر کرامت کودکان، مهروزی و مصلحت

  19. Jurisprudence, Peyote and the Native American Church.

    Science.gov (United States)

    Lawson, Paul E.; Scholes, Jennifer

    1986-01-01

    Examines federal and state governments' attempts to suppress peyote use in Indian rituals as historically Christian-inspired. Focuses on questions of morality versus criminal law. Explains history and development of Native American Church of North America. Examines nine contemporary peyote trials. Concludes larger questions of tribal sovereignty…

  20. Suehiro Jurisprudence and John R. Commons

    DEFF Research Database (Denmark)

    Tackney, Charles T.

    This is a comparative history study at the interface of industrial / employment relations and stakeholder theory. The focus concerns decades of post-World War II Japanese and U.S. path dependent national divergence from common labor legislation enactments separated by only 15 years: 1933...... or Suehiro hōgaku) document a dramatic, fascinating historical parting of two nations due to Japanese deep appreciation of the labor law and institutional economics research legacy of John R. Commons, the father of U.S. industrial relations. Understanding this common, shared source opens industrial relations...

  1. religious freedom in South African constitutional jurisprudence

    African Journals Online (AJOL)

    Irma Kroeze

    In the case of self-rule a further distinction can be made between negative ... already been stated, the pluralist rejection of the connection between law and politics is .... property rights" 1982 Buffalo LR 635-735 on the early history of classical.

  2. introductory concepts on sociological jurisprudence: jhering ...

    African Journals Online (AJOL)

    eliasn

    sociological theory whose main and pervasive message is that “law is a social .... content of law is infinitely varied and relative to the different societies. There is thus ... All legal principles for Jhering can be reduced to the security of condition of.

  3. Sex-Reassignment Rules in Shiite Jurisprudence.

    Science.gov (United States)

    Kalbasi-Isfahani, Fahimeh; Deleer, Mohsen

    2016-01-01

    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. 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. 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". 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.

  4. Constitutional values, therapeutic jurisprudence and legal education ...

    African Journals Online (AJOL)

    ... they have the power to transform thoughts, policies and lives, and that practising law is ... The values and philosophies that law lecturers instil in law students can ... The question remains: How do we transform legal education in South Africa? ... to our constitutional vales and an ability to engage critically with these values.

  5. Chronique de jurisprudence suisse (1996-2004)

    DEFF Research Database (Denmark)

    Cavaleri, Sylvie Cécile

    2005-01-01

    The article reviews case law on the Swiss Statute on Private International Law from 1996 to 2004. Sylvie Cavaleri's contribution concerns provisions on insolvency and bankruptcy.......The article reviews case law on the Swiss Statute on Private International Law from 1996 to 2004. Sylvie Cavaleri's contribution concerns provisions on insolvency and bankruptcy....

  6. MALIKI JURISPRUDENCE AND BOKO HARAM IDEOLOGY ...

    African Journals Online (AJOL)

    Dean SPGS NAU

    in selected enclaves, namely, Indonesia, Pakistan and Malaysia. The ... Hence, the consensus of opinion in Medina regarding any Islamic tradition was seen as a ... materials and in propaganda videos that are regularly released to the public.

  7. ПРАГМАТИЧНИЙ АСПЕКТ ФАХОВОЇ МОВИ ЮРИСПРУДЕНЦІЇ / PRAGMATIC ASPECT OF PROFESSIONAL LANGUAGE OF JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Оксана НОВОСТАВСЬКА

    2017-03-01

    Full Text Available Новоставская О.И. Прагматический аспект профессионального языка юриспруденции. Исследовано важность прагматического аспекта в понимании профессионального языка юриспруденции как части современного украинского языка. Освещено роль значения семиотического понимания, когнитивно-языкового и ритуально-культурного подходов в раскрытии логико-семантического ракурса актуальной украинской юридической терминосистемы. Приведены примеры новых лексем в законодательных актах и энциклопедической научной литературе, функционирование которых требует профессионального анализа юристов и лингвистов. Ключевые слова: линвистическая прагматика, профессиональный язык юриспруденции, право, термин, лексика. Novostavska O. Pragmatic Aspect of Professional Language of Jurisprudence. In this article studied the importance of pragmatic aspect in the understanding of the professional language of law as a part the modern Ukrainian language. One of the main problems of linguistic is the pragmatics in language. Pragmatic meaning is dependent on the context of the utterance and has rules of use. Semantic meaning refers to the aspect of meaning, which describes events in the world that are independent of the circumstance they are uttered in. Linguistic pragmatics focuses its attention on a particular speaker, speech activity of which is implemented in a pragmatic communicative space. A

  8. mens rea principle and criminal jurisprudence in nigeria

    African Journals Online (AJOL)

    Mofasony

    The doctrine of mens rea is a central distinguishing feature of criminal justice system in old ... specific mental element that is required to be defined and proved in respect of a ... Does the idea of causation relate to the question of mens rea?

  9. The Philosophical Underpinnings of Public School Funding Jurisprudence.

    Science.gov (United States)

    Hackney, James R., Jr.

    1993-01-01

    Uses the theories of John Rawls (democratic/egalitarian) and Robert Nozick (libertarian) as prisms through which to analyze judicial opinions underlying court decisions regarding public education financing. (302 footnotes) (MLF)

  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.

  11. 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

  12. Women's Rights in Matrimonial Jurisprudence under Islamic Family ...

    African Journals Online (AJOL)

    Marriage is a very pervasive social institution. Yet, as with other aspects of social life, there is great variation in family and marriage patterns across diverse cultures and religions. What counts as marriage, its connection with kindred issues, whom and how many one is permitted to marry, how spouses are elected, the ...

  13. An overview of the ontological basis of African jurisprudence | Agbo ...

    African Journals Online (AJOL)

    Life for the African is encapsulated in his understanding of the concept of ontology in which 'beings' and 'forces' are hierarchically ordered. A distortion of this order affects the African's 'vital force' and consequent 'vital rank'. This understanding underlies the African conception of law and juridical restitution as regulating ...

  14. Cultures in Collision: Cosmology, Jurisprudence, and Religion in Tlingit Territory

    Science.gov (United States)

    Russell, Caskey

    2009-01-01

    The term "first contact" usually conjures up an image of a group of European soldiers landing on a beach in the New World, their ship anchored just offshore, while a large group of Natives approaches the soldiers. On both sides there is caution but also curiosity. Beyond the physical collision of two different peoples there is also a…

  15. Islam, brain death, and transplantation: culture, faith, and jurisprudence.

    Science.gov (United States)

    Arbour, Richard; AlGhamdi, Hanan Mesfer Saad; Peters, Linda

    2012-01-01

    A significant gap exists between availability of organs for transplant and patients with end-stage organ failure for whom organ transplantation is the last treatment option. Reasons for this mismatch include inadequate approach to potential donor families and donor loss as a result of refractory cardiopulmonary instability during and after brainstem herniation. Other reasons include inadequate cultural competence and sensitivity when communicating with potential donor families. Clinicians may not have an understanding of the cultural and religious perspectives of Muslim families of critically ill patients who may be approached about brain death and organ donation. This review analyzes Islamic cultural and religious perspectives on organ donation, transplantation, and brain death, including faith-based directives from Islamic religious authorities, definitions of death in Islam, and communication strategies when discussing brain death and organ donation with Muslim families. Optimal family care and communication are highlighted using case studies and backgrounds illustrating barriers and approaches with Muslim families in the United States and in the Kingdom of Saudi Arabia that can improve cultural competence and family care as well as increase organ availability within the Muslim population and beyond.

  16. 217 | Page A JURISPRUDENCE OF THE RULE OF LAW: AN ...

    African Journals Online (AJOL)

    Fr. Ikenga

    In the previous republics in Nigeria, the rule of law has not been .... 5 T. Aquinas in S.O. Eboh, Legal Theories and The African Concept of Law, Heb – Uni – Tech ... Not only with us no man is above the law (what is a different thing) that here.

  17. The precautionary principle in international environmental law and international jurisprudence

    Directory of Open Access Journals (Sweden)

    Tubić Bojan

    2014-01-01

    Full Text Available This paper analysis international regulation of the precautionary principle as one of environmental principles. This principle envisages that when there are threats of serious and irreparable harm, as a consequence of certain economic activity, the lack of scientific evidence and full certainty cannot be used as a reason for postponing efficient measures for preventing environmental harm. From economic point of view, the application of precautionary principle is problematic, because it creates larger responsibility for those who create possible risks, comparing to the previous period. The precautionary principle can be found in numerous international treaties in this field, which regulate it in a very similar manner. There is no consensus in doctrine whether this principle has reached the level of international customary law, because it was interpreted differently and it was not accepted by large number of countries in their national legislations. It represents a developing concept which is consisted of changing positions on adequate roles of science, economy, politics and law in the field of environmental protection. This principle has been discussed in several cases before International Court of Justice and International Tribunal for the Law of the Sea.

  18. The Use of a Therapeutic Jurisprudence Approach to the Teaching ...

    African Journals Online (AJOL)

    Law lecturers are faced with a new generation of law students, many of ... To meet this challenge it is necessary to instill skills that will be beneficial to ... The teaching methods invoked include role-play to transform formal knowledge into living ...

  19. The precautionary principle in international environmental law and international jurisprudence

    OpenAIRE

    Tubić, Bojan

    2014-01-01

    This paper analysis international regulation of the precautionary principle as one of environmental principles. This principle envisages that when there are threats of serious and irreparable harm, as a consequence of certain economic activity, the lack of scientific evidence and full certainty cannot be used as a reason for postponing efficient measures for preventing environmental harm. From economic point of view, the application of precautionary principle is problematic, because it create...

  20. Abuse of dominant position in Albania based in jurisprudence

    Directory of Open Access Journals (Sweden)

    Endri Papajorgji

    2016-11-01

    Full Text Available Competition law and cartel is the basis of a modern economy. While in the US, competition law exists and is terminologically known and is part of legislation since 1890 (Sherman Law, in Europe, it has become part of the founding treaties of the EU since 1957 by the Treaty of Rome. However, at that time, “culture of competition” would be born in the member states of the EU, which traditionally favour cartel agreements, state aid and the promotion of national products. Some EU member states have included competition law in their national legislation in the early 90-s. Rules were set for the first time on competition in the coal and steel market under Articles 65 and 66 of the Treaty of Rome, constituted a new terminology for member states. Albania has worked during these 24 years of democracy, to apply the basic principles of market economy and along with it the Lisbon Treaty, Regulations and EU Directives in the frame of competition. Main purpose of this manuscript is to give an overview of the abuse of dominant position in the frame of the most important court decision of this legal institution in Albania.

  1. THE JURISPRUDENCE OF PRODUCT LIABILITY IN NIGERIA: A ...

    African Journals Online (AJOL)

    RAYAN_

    to establish a fault, as in the cases of manufacturing defects, it is an uphill task in cases of ... See

  2. It's Time to Teach Jurisprudence in High School

    Science.gov (United States)

    Kahn, Stephen C.

    1975-01-01

    The concept of a "government of laws and not of men," representing the philosophy called legal positivism, is developed historically as it might be presented to a secondary school class. Some of the practical benefits from the teaching of the philosophy of law are also discussed. (JH)

  3. The jurisprudence of product liability in Nigeria: a need to ...

    African Journals Online (AJOL)

    Bearing in mind that a principal rationale of tort law is to ensure that prejudiced parties are compensated for losses suffered, this article explains why it is necessary to assess and review applicable principle of liability in Nigeria to ensure that it is in line with the demands of justice, which should be in conformity with the ...

  4. A Jurisprudência Brasileira da Transexualidade: uma reflexão à luz de Dworkin

    Directory of Open Access Journals (Sweden)

    Maria Eugenia Bunchaft

    2013-12-01

    Full Text Available http://dx.doi.org/10.5007/2177-7055.2013v34n67p277A transexualidade é um dos temas mais controversos da bioética. A temática é encoberta por autocompreensões assimétricas de mundo vinculadas a concepções religiosas, que terminam por minimizar os aspectos jurídicos fundamentais relativos ao direito à identidade sexual. Por meio da análise de diferentes projetos de lei, que tratam da temática da transexualidade, objetiva-se provar que a insuficiência da atuação do processo político majoritário na satisfação de demandas sociais específicas de transexuais tem sido suprida pelo papel pedagógico da atuação de alguns tribunais e do Superior Tribunal de Justiça na interpretação do direito de mudança do prenome e do sexo. Propugna-se investigar a relevância da estratégia de conciliação de valores em uma rede harmoniosa para a análise dos princípios jurídicos envolvidos na temática da mudança de prenome e sexo por transexuais.

  5. A Human Rights Perspective of Assisted Suicide: Accounting for Disparate Jurisprudence.

    Science.gov (United States)

    Martin, Stevie S

    2018-02-01

    This article critically examines the decision of the New Zealand High Court in Seales v Attorney-General [2015] NZHC 1239, which rejected the claim that that country's blanket ban on assisted suicide violated various rights enshrined in the New Zealand Bill of Rights. That outcome runs contrary to the Canadian Supreme Court's decision in Carter v Canada (Attorney General) [2015] 1 SCR 331. This disparity in result arose despite overt similarities between the rights documents in each of the jurisdictions and, more significantly, notwithstanding the fact that the trial judge in Seales placed heavy reliance upon the decision in Carter. With two new challenges to the blanket ban on assisted suicide in England and Wales progressing through the lower courts, and given proposed amendments to the ban in both New Zealand and its antipodean neighbours - the Australian states of Victoria and New South Wales - it is a propitious time to consider the reasons for the disparate outcomes in Seales and Carter. This article will demonstrate that the trial judge's reasoning in Seales was wanting in a number of important respects, particularly in terms of the characterisation of the objective of the blanket ban. These limitations undermine the decision's utility as authority both domestically and internationally. This is particularly important given the high likelihood that reference will be made to the decision during debate in the New Zealand Parliament regarding amendments to the ban in that country and the possibility that the Legislatures in Victoria and New South Wales, as well as the English courts hearing the current challenges to the ban in that jurisdiction will, particularly given the shared common law background, refer to the judgment in Seales.

  6. "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.

  7. Focus giurisprudenziale / Gros plan sur la jurisprudence / Case-law Focus

    Directory of Open Access Journals (Sweden)

    Corvucci L.M.

    2017-12-01

    Full Text Available Misure cautelari - Sentenza Corte di Cassazione Sez. 5 Num. 47111/2017 Pres. Sabeone - Rel. Riccardi Bancarotta fraudolenta - Sentenza Corte di Cassazione Sez. 5 Num. 45288/17 Pres. Bruno Rel. Scardamaglia Tenuità del fatto – Questione processuale - Sentenza Corte di Cassazione penale sez. 2 Num. 45630/17 Pres. Fumu Rel. Recchione Il caso Cucchi approdato in Cassazione - Ancora da riesaminare le condotte dei sanitari - Osservazioni a margine di Cass. Sezione prima 46432/17 - Pres. Mazzei - Rel. Aprile

  8. Genetically Modified Foods at the Intersection of the Regulatory Landscape and Constitutional Jurisprudence.

    Science.gov (United States)

    Ghoshray, Saby

    2015-01-01

    An ecosystem...[y] ou always intervene and change something in it, but there's no way of knowing what all the downstream effects will be or how it might affect the environment. We have such a miserably poor understanding of how the organism develops from its DNA that I would be surprised if we don't get one rude shock after another.

  9. The cultural dimension of economic activities in international human right jurisprudence

    NARCIS (Netherlands)

    Donders, Y.; Vadi, V.; de Witte, B.

    2015-01-01

    Cultural diversity and human rights are mutually linked: human rights protect and promote cultural diversity while cultural diversity also forms an important aspect of the enjoyment of human rights. Cultural diversity and the economy are also increasingly connected, for example through cultural

  10. The right to appeal on criminal procedure under international acts and jurisprudence

    Directory of Open Access Journals (Sweden)

    MSc. Vilard Bytyqi

    2016-01-01

    Full Text Available The right to appeal, respectively the right on complaint as per our legal vocabulary, constitutes the basic trunk of the second phase of court decisions in a certain procedure, in particular the criminal proceedings. The aim of this paper is to emphasize the main notions of appeal, but also in other aspects through the comparative description it aims to bring more clarity in differences and similarities that exist in between the appeal which is used in our criminal proceedings and the appeal which is used in the criminal proceedings that take place in the supranational courts. It is known that in courts which consist of international elements, the appeal is positioned in a more advanced level, due to the fact that there are grounds of suspicion used over every element that could be used in any national criminal proceedings. Overall, in any place of the world, the appeal has the goal to remedy court decisions brought by the court of first instance, while, in the procedural aspect it has more or less differences depending on the regulations of criminal procedures of that state.  Such difference due to the diversity of the legal systems today are also accepted as the universal legal value, since establishment of international tribunals provides the best practice in this field.

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

    OpenAIRE

    Alireza ShekarBeigi; Peyman Akbari; Ghodrat Heydari

    2014-01-01

    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...

  12. Letter: Can Islamic Jurisprudence Justify Procurement of Transplantable Vital Organs in Brain Death?

    Science.gov (United States)

    Rady, Mohamed Y

    2018-01-01

    In their article, "An International Legal Review of the Relationship between Brain Death and Organ Transplantation," in The Journal of Clinical Ethics 29, no. 1, Aramesh, Arima, Gardiner, and Shah reported on diverse international legislative approaches for justifying procurement of transplantable vital organs in brain death. They stated, "In Islamic traditions in particular, the notion of unstable life is a way to justify organ donation from brain-dead patients that we believe has not been fully described previously in the literature." This commentary queries the extent to which this concept is valid in accordance with the primary source of Islamic law, that is, the Quran. Copyright 2018 The Journal of Clinical Ethics. All rights reserved.

  13. No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform

    Directory of Open Access Journals (Sweden)

    F.L. Ted Morton

    2015-04-01

    Full Text Available In the Senate Reform Reference of 2014, the Supreme Court of Canada declared the Harper government’s proposed reforms to the Canadian Senate unconstitutional. The court ruled that the Federal Government could not legislate non-binding, consultative elections for selecting senators, nor legislate term limits for senators without the consent of at least seven of the 10 provinces. It also ruled that abolishing the Senate would require the unanimous consent of all 10 provinces. The court’s ruling is widely understood to have put an end to the Senate reform movement of the past three decades and to have constitutionally entrenched the Senate status quo. My analysis criticizes the court for failing to play a constructive role in facilitating the political reform of an institution that has ceased to serve any useful political purpose (other than patronage and for unnecessarily condemning Canadians to endure this dysfunctional second chamber for at least another generation. In earlier analogous cases of political deadlock and constitutional ambiguity— the Patriation Reference of 1981 and the Quebec Secession Reference of 1997—the court exercised “bold statecraft [if] questionable jurisprudence” to craft compromise rulings that facilitated subsequent resolutions by elected governments. But not in this case. The court could have easily reached a more constructive conclusion following its own “living tree” approach to constitutional interpretation. The court ignored its own “foundational constitutional principles” of democracy and federalism—values that would be enhanced by provincial Senate elections. Indeed, the court has now given greater constitutional support for secession referendums in Quebec than it has for democratically elected senators. I suggest that there is still an exit strategy for the Harper government out of this judicially created dead end: simply turn the appointment of future senators over to provincial premiers, and let the dynamics of partisan provincial politics push the future selection of senators toward democratic elections.

  14. The Subsidiarity of International Treaties Against Double Taxation Critical Analysis of French Jurisprudence

    OpenAIRE

    Marinho, Anapaula Trindade

    2016-01-01

    The application of tax treaties by national courts around the world is not uniform. Depending on the country where a given taxpayer raised a conflict between the provisions of the national tax rules and the regime provided by a tax treaty, the interpretation of the tax treaty might vary. The result can lead to a situation of double taxation, contrary to the aim of tax treaties. The contribution is about a particular principle of law that the Administrative French Supreme Court, i.e., the “Con...

  15. jurisprudence precedent on the instruments of environmental regulation of the electrical colombian sector

    International Nuclear Information System (INIS)

    Arcila R, Jaime Leon; Velasquez A, Hector I

    2009-01-01

    What the authors of the Law of the Environment have named the green Constitution or the ecological Constitution of 1991, necessarily it has consequences in the legal practice of the instruments of environmental management in all the levels and sectors of the economy, especially if the previous thing is analyzed in the frame of the Social State of Law in the Constitution of 1991, under this perspective, it is possible to understand the emptiness and inconsistencies of the environmental management in the electrical Colombian sector (SEC), from the critical analysis of the instruments of environmental regulation established in the in the Law in addition it is possible to check these instruments in his role of tools for the environmental management, to identify a constitutional and legal conceptualization adapted for the development of the same ones and to determine the necessary adjustments to realize in his environmental role of management tools in the SEC. The attainment of the previous aims carries an own methodology of the social qualitative research in his juridical political levels. The content of this article realizes the first advances in order to study from a juriprudential and not merely legal optics, since up to the moment the topic has been approached.

  16. 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.

  17. A critque of the WTO jurisprudence on ‘necessity’ / Gisele Kapterian

    Index Scriptorium Estoniae

    Kapterian, Gisele

    2010-01-01

    Artikkel uurib kohtupraktika põhjal, kas WTO seadusandlus arvestab piisavalt kaubanduse liberaliseerimise ja õigusnormide autonoomiaga ning kas legitiimsus ja läbipaistvus on tagatud. WTO lepingutest: üldine tolli- ja kaubanduskokkulepe (GATT - General Agreement on Tariffs and Trade); sanitaar- ja fütosanitaarmeetmete rakendamise leping (SPS - Sanitary and phytosanitary measures) ; tehniliste kaubandustõkete leping (TBT - Technical barriers to trade)

  18. The response of Islamic jurisprudence to ectopic pregnancies, frozen embryo implantation and euthanasia.

    Science.gov (United States)

    Ghanem, I

    1987-07-01

    The opinions of the Jurisconsult of Egypt on Islamic law regarding test tube fertilization, embryo transfer and abortion are explained. Test tube babies, if not derived from the husband's sperm, are by definition, "zina" or the result of illicit sexual intercourse. This type of quasi-adultery is punishable by mere disgracing, rather than lapidation, or stoning to death. Such children cannot inherit even from the mother. Possibly, a female child may marry the husband, to be legitimized in terms of inheritance. Under Islamic law, embryo transfer is illegal insofar as it involves artificial insemination of the donor by the husband; temporary maternity by the donor is a jural concept that has no place in Islamic family law. The egg of the donor, not the surrogate mother, places the issue in the thorny area of multiple suckling. There have been no pronouncements by Islamic legal experts on euthanasia or pregnancy by in vitro fertilization of orphaned embryos. Abortion law "ijhad" in Kuwait was amended in 1982 to permit abortion where either grievous bodily harm to the mother is imminent or it is proved that the baby will suffer incurable brain damage or severe mental retardation. The decision must be approved unanimously by 3 Muslim consultant physicians presided over by an obstetrician or gynecologist, parental consent is required, and the hospital must have an obstetric-gynecological wing. There is precedent in Islamic law for saving the life of the mother where there is a clear choice of allowing either the fetus or the mother to survive. Similarly in case of miscarriage or attempted miscarriage, damages for a fetus or stillborn are less than those paid for a live birth. Penalties for therapeutic abortion, for example after exposure to German measles, have been viewed as less serious before 120 days of gestation, when the Prophet indicated that the embryo is given a soul. These ethical interpretations are worth considering for Western jurists as a source of ideas.

  19. Extraordinary Exceptions at the International Criminal Court : The (New) Rules and Jurisprudence on Presence at Trial

    NARCIS (Netherlands)

    Knottnerus, Abel S.

    2014-01-01

    After their election as President and Vice-President of Kenya, Uhuru Kenyatta and William Ruto asked to be excused from continuous presence during their trials at the ICC. This request raised difficult questions for the Court’s Judges. First, can the accused be excused or is continuous presence a

  20. 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.

  1. 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

  2. The jurisprudence of British Euroscepticism:
    A strange banquet of fish and vegetables

    Directory of Open Access Journals (Sweden)

    Gavin Drewry

    2007-12-01

    Full Text Available Parliamentary sovereignty, meaning that the validity of Acts of Parliament cannot be challenged in the courts, has long been a core principle of the uncodified British Constitution. Much of the political controversy in the 1960s and ’70s about UK membership of the European Communities focused on the transfer of law-making functions to the EC Commission and the Council of Ministers. The role of the European Court of Justice, and the possibility that both the ECJ and the UK’s own domestic courts might entertain challenges to domestic primary legislation, on the grounds of its incompatibility with EC law, was largely overlooked. It was not until the mid-1980s that British ‘Eurosceptics’ began to realise that the courts might pose a challenge to parliamentary sovereignty. A turning point was the Factortame litigation, in which the ECJ reaffirmed that domestic legislation that conflicts with EC legal obligations must be disapplied. A decade later, in the ‘metric martyrs’ case, a British court, without referring the issue to the ECJ, decided an important principle of EC law. Both these cases – the focus for much political lobbying – underline the extent to which the courts have acquired a much higher political profile in the UK than they have had in the past.

  3. The judgment on the phosphoethanolamine case and the jurisprudence of the Brazilian Federal Supreme Court

    Directory of Open Access Journals (Sweden)

    Zebulum J. C.

    2017-02-01

    Full Text Available Widespread use of the synthetic substance phosphoethanolamine, known as the cancer pill, was recently reported among patients with malignant neoplasm. However, the substance was not registered in the Brazilian National Health Surveillance Agency and the clinical studies necessary to guarantee its effectiveness and safety had not even been completed. Neverthe-less, the federal government enacted Law number 13.269/2016, authorizing provision by the Brazilian National Public Health System under certain conditions, and various injunctions were granted that forced the state to provide it. The question was considered by the Supreme Court in two important judgments in which the Court suspended all injunctions granted and suspended the effectiveness of the law based on evidence of unconstitutionality. In this article, we analyze the legal grounds of the decisions in the context of previous positions of the Court and the guidelines established in judgment of STA 175-AgR/CE.

  4. Protection of Non-Trade Values in WTO Appellate Body Jurisprudence

    DEFF Research Database (Denmark)

    Andersen, Henrik

    2015-01-01

    of economic externality assessments in subsidy determinations. It is, however, still unsettled how other vital values, like those which can fall under peremptory norms, can be protected by the Appellate Body and whether its current approach provides the necessary tools for their protection.......The article suggests that the constitutional scope of the WTO leaves a wide space for the Appellate Body to protect non-trade values. That has, to some extent, materialized in Appellate Body practice; human health and environment are attaining general protection across the WTO treaties....... They are recognized as vital and important values and protected through the exceptions in the WTO treaties. However, the Appellate Body has also found ways to protect those values without resorting to the exceptions. Instead, they are part of an economic argument in national treatment analyses and they are part...

  5. 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.

  6. Compare. An analysis of jurisprudence of the Dutch Real Estate Appraisal in relation with the vicinity of wind turbines

    International Nuclear Information System (INIS)

    Berenschot, J.H.M.

    2005-11-01

    The central question in this report concerns the impact of recent judgements with regard to the devaluation of houses as a result of wind turbines in the vicinity of those houses. More specific: does the installation of wind turbines near houses effect the so-called Real Estate Appraisal tax for those houses. From four cases it appears that three aspects are important: noise pollution, cast shadow hindrance and visual hindrance, caused by wind turbines [nl

  7. Criminal policy of the Colombian State and the rights of persons deprived of liberty: Legislative Analysis and Constitutional Court jurisprudence

    Directory of Open Access Journals (Sweden)

    Omar Huertas Díaz

    2013-12-01

    Full Text Available With the entry into force of the 1991 Constitution, Colombia entered the era of fundamental rights as they catalog the Superior text is large and that the Constitutional Court has given scope beyond the simple meaning of the sentences that make each of these fundamental rights. In turn, it started the legislation has couple that were in effect prior to the new Charter and new rules are enacted. In this legislative development, the Colombian State has issued numerous rules that allow the restriction of personal freedom of the people living in the Colombian territory, whether of a temporary (security measures or has permanent level (custodial sentences. In that future legislation, the crisis within jails and prisons in the country worsened, today introduced massive violations of fundamental rights of persons deprived of liberty by court order. Overcrowding, lack of information necessary to meet the basic needs of prisoners, the absence of a criminal policy consonant with the reality of these detention centers are just some of the issues that shape the aforementioned rights violations. With the research carried seeks to make recommendations to the criminal policies in jail and prison, to enable the State to overcome this crisis.

  8. The Right to Appeal as a Fundamental Right under International Acts and Jurisprudence, with Special Emphasis on Criminal Procedure

    Directory of Open Access Journals (Sweden)

    Vilard BYTYQI

    2017-03-01

    Full Text Available The right to appeal, respectively the right on complaint as per our legal vocabulary, constitutes the basic trunk of the second phase of court decisions in a certain procedure, in particular the criminal proceedings. The aim of this paper is to emphasize the main notions of appeal, but also in other aspects through the comparative description it aims to bring more clarity in differences and similarities that exist in between the appeal which is used in our criminal proceedings and the appeal which is used in the criminal proceedings that take place in the supranational courts. It is known that in courts which consist of international elements, the appeal is positioned in a more advanced level, due to the fact that there are grounds of suspicion used over every element that could be used in any national criminal proceedings. Overall, in any place of the world, the appeal has the goal to remedy court decisions brought by the court of first instance, while, in the procedural aspect it has more or less differences depending on the regulations of criminal procedures of that state. Such difference due to the diversity of the legal systems today are also accepted as the universal legal value, since establishment of international tribunals provides the best practice in this field.

  9. The 'Nuremberg clause' and beyond: legality principle and sources of international criminal law in the European Court's jurisprudence / Triestino Mariniello

    Index Scriptorium Estoniae

    Mariniello, Triestino

    2013-01-01

    Seaduse alusel karistamisest Euroopa inimõiguste ja põhivabaduste kaitse konventsiooni artikli 7 alusel Euroopa Inimõiguste Kohtu lahendite Korbely v. Ungari, Kononov v. Läti ja Penart v. Eesti näitel

  10. Mainstreaming Investment Treaty Jurisprudence: The Contribution of Investment Treaty Tribunals to the Consolidation and Development of General International Law

    NARCIS (Netherlands)

    Schill, S.W.B.; Tvede, K.R.

    2015-01-01

    The use of internal and external precedent has been studied in relation to numerous international courts and tribunals. The participation of investment treaty tribunals in judicial dialogues or judicial cross-fertilization, by contrast, has remained underexplored. The present article closes this gap

  11. Causation in negligence: from anti-jurisprudence to principle--individual responsibility as the cornerstone for the attribution of liability.

    Science.gov (United States)

    Bagaric, Mirko; Erbacher, Sharon

    2011-06-01

    Causation is one of the most esoteric and poorly defined legal principles. The common law standards of the "but for" test and common sense are, in reality, code for unconstrained judicial choice. This leads to a high degree of unpredictability in negligence cases. Changes to the causation standard following the torts reforms have done nothing to inject principle into this area of law: the concept of "appropriateness" is no more illuminating than common sense. Despite this, the trend of recent High Court decisions offers some prospect of clarifying the test for causation. Key themes to emerge are an increased emphasis on individual responsibility and the associated concept of coherency with other legal standards. This article examines the doctrinal reasons underpinning the increasingly important role of these ideals and suggests how they can be accommodated into the test for causation to inject greater coherence and predictability into this area of law.

  12. Environment Playing Short-handed: Margin of Appreciation in Environmental Jurisprudence of the European Court of Human Rights

    Czech Academy of Sciences Publication Activity Database

    Müllerová, Hana

    2015-01-01

    Roč. 24, č. 1 (2015), s. 83-92 ISSN 2050-0394 Grant - others:Rada Programu interní podpory projektů mezinárodní spolupráce AV ČR(CZ) M300681201 Program:M Institutional support: RVO:68378122 Keywords : European Court of Human Rights * margin of appreciation * environment Subject RIV: AG - Legal Sciences http://onlinelibrary.wiley.com/doi/10.1111/reel.12101/epdf

  13. Modernizing "San Antonio Independent School District v. Rodriguez": How Evolving Supreme Court Jurisprudence Changes the Face of Education Finance Litigation

    Science.gov (United States)

    Saleh, Matthew

    2011-01-01

    This article aims to "modernize" the current legal debate over inequitable public school funding at the state and local level. The 1973 Supreme Court case of "San Antonio Independent School District v. Rodriguez" established precedent, allowing for property-tax based education funding programs at the state-level--a major source…

  14. Personhood and Moral Status of The Embryo: It's Effect on Validity of Surrogacy Contract Revocation according to Shia Jurisprudence Perspective.

    Science.gov (United States)

    Nazari Tavakkoli, Saeid

    2017-10-01

    One of the most controversial issues related to the human embryo is the determination of the moment when an embryo is considered a human being and acquires a moral status. Although personhood and moral status are frequently mentioned in medical ethics, they are considered interdisciplinary as concepts that shape the debate in medical law (fiqh) since their consequences are influential in the way which the parents and other individuals behave towards the embryo. This analytical-descriptive research gathered relevant data in a literature search. After a description of the fundamentals and definitions, we subsequently analyzed juridical texts and selected one of the viewpoints that regarded the surrogacy contract revocation. The surrogacy contract is a contract based upon which two sides (infertile couple and surrogate mother) involved in making the contract are obligated to fulfill its terms. Therefore, contract revocation can be surveyed from three perspectives: mutual revocation (iqala), legal unilateral wills (khiar al-majlis, khiar al-ayb), and contractual wills (khiar al-shart). Revocation of a surrogacy contract either by the genetic parents, surrogate or the fertility clinic is allowed by Muslim jurists only when the embryo lacks personhood. Based on Islamic teachings, the termination of a surrogacy contract in and after the sixteenth week of pregnancy, when the embryo acquires a human soul (ensoulment), is not allowed. However religious thought emphasizes the moral status of the fetus before the sixteenth week and states that optional termination of the surrogacy contract is not permitted while the fetus becomes a human being. Copyright© by Royan Institute. All rights reserved.

  15. A argumentação e a mudança de prenome de transexual na jurisprudência

    OpenAIRE

    Fátima Catarina Fernandes

    2008-01-01

    A partir da Semântica do Acontecimento e da Análise do Discurso Francesa, com a qual a primeira dialoga, estudamos como se dá a argumentação no que diz respeito à mudança de nome próprio de transexual em recortes do locutor-requerente, bem como pormeio da argumentação e da designação que se vale o locutor-juiz para autorizar a mudança de prenome do transexual. Nesse processo jurídico tramitado no espaço enunciativo de São Carlos, Estado de São Paulo, o requerente transexual Agnaldo solicit...

  16. Echoes of Strasbourg in Geneva : The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee

    NARCIS (Netherlands)

    Buyse, A.C.|info:eu-repo/dai/nl/258219327

    2016-01-01

    In this article the influence of the European Court of Human Rights’ case-law on the United Nations Human Rights Committee will be analysed. This particular choice of supervisory bodies enables us to trace such potential influence adequately since both the Court and the Committee supervise treaties

  17. Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence.

    Science.gov (United States)

    Lugosi, Charles I

    The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.

  18. The issue of delivery room infections in the Italian law. A brief comparative study with English and French jurisprudence.

    Science.gov (United States)

    Zaami, Simona; Montanari Vergallo, Gianluca; Napoletano, Simona; Signore, Fabrizio; Marinelli, Enrico

    2018-01-01

    Delivery room infections are frequent, and many of them could be avoided through higher standards of care. The authors examine this issue by comparing it to English and French reality. Unlike England, in Italy and France the relationship established between health facility, physician and patient is outlined in a contract. In England, the judges' decisions converge toward a better and higher protection of the patient-the actor-and facilitate the probative task. In case of infections, including those occurring in the delivery room, three issues are evaluated: the hospital's negligent conduct, damages if any and causal nexus. Therefore, the hospital must demonstrate to have taken the appropriate asepsis measures according to current scientific knowledge concerning not only treatment, but also diagnosis, previous activities, surgery and post-surgery. In order to avoid a negative sentence, both physicians and hospital have to demonstrate their correct behavior and that the infection was caused by an unforeseeable event. The authors examine the most significant rulings by the Courts and the Supreme Court. They show that hospitals can avoid being accused of negligence and recklessness only if they can demonstrate to have implemented all the preventive measures provided for in the guidelines or protocols.

  19. Women’s rights and minorities’ rights in Canada. The challenges of intersectionality in Supreme Court jurisprudence

    Directory of Open Access Journals (Sweden)

    Scotti Valentina Rita

    2017-12-01

    Full Text Available After a discussion of the impact of the principle of equality, entrenched in the Charters approved in Canada since the 1867 British North American Act, this essay then focuses on the related Supreme Court’s adjudications. A brief analysis of the case-law concerning gender equality is followed by the discussion of cases of Aboriginal and Muslim women with the aim of assessing whether intersectionality represents for these groups of women a source of double discrimination. Brief concluding remarks discuss the challenges deriving from the different options for accommodating the principle of equality with cultural rights.

  20. Massacre of Canadian Army Medical Corps personnel after the sinking of HMHS Llandovery Castle and the evolution of modern war crime jurisprudence.

    Science.gov (United States)

    Doucet, Jay; Haley, Gregory; McAlister, Vivian

    2018-06-01

    Events after the sinking of the hospital ship Llandovery Castle on June 27, 1918, by the German submarine U-86 outraged Canadians. Survivors aboard a single life raft gave evidence that many of the 234 souls lost had made it to lifeboats but were rammed and shot by the submarine. Many of those who died were nurses. Three German officers were charged with war crimes after the war. The submarine's captain evaded capture. The remaining two officers' defence that they were following the captain's orders failed and they were convicted. This ruling was used as a precedent to dismiss similar claims at the war crime trials after the Second World War. It is also the basis of the order given to members of modern militaries, including the Canadian Armed Forces, that it is illegal to carry out an illegal order.

  1. Égalité salariale, discriminations individuelles et systémiques. Un éclairage de la jurisprudence américaine

    OpenAIRE

    Marie Mercat-Bruns

    2010-01-01

    The United States and Europe prohibit wage discrimination and support equal pay between men and women. Beyond the legal standards used in different countries, it is difficult to measure exactly the breadth of pay discrimination which covers entire careers and can stem from different sources. In the United States, two cases shed light on the stakes of this economic, social, and legal debate involving gender. These cases illustrate the recurring challenges of finding an adequate time frame in c...

  2. High-Rise Construction in Densely Dwelled Cities: Requirements for Premises Insolation and Consequences of their Violation in Russian Law and Jurisprudence

    Science.gov (United States)

    Gongalo, Boris; Gudovicheva, Lubov; Gubareva, Anna; Dobrynina, Larisa

    2018-03-01

    The issues of constructing high-rise, primarily residential, buildings have a great social significance. Not every plot of land, acquired in the Russian Federation is suitable for high-rise construction. Therefore, every construction company that plans to erect a multi-apartment building, a high-rise office building, or a skyscraper must take into account not only technical norms but as well sanitary legislation regulations that set obligatory requirements about insolation of apartments. The article includes a short study of several norms in the Russian legislation regarding insolation of dwellings; analises the problems of judicial interpretation of the statutory limitations. In this aspect it researches the debatable questions arising in practice of state arbitration courts dealing with the lawsuits on allocation of land-plots by the local administration. The analysis of the judicial practice is followed by description of the difficulties facing the developers of land-plots, concerning the project and territorial planning documentation.

  3. Personhood and Moral Status of The Embryo: It’s Effect on Validity of Surrogacy Contract Revocation according to Shia Jurisprudence Perspective

    Directory of Open Access Journals (Sweden)

    Saeid Nazari Tavakkoli

    2017-09-01

    Full Text Available Background One of the most controversial issues related to the human embryo is the determination of the moment when an embryo is considered a human being and acquires a moral status. Although personhood and moral status are frequently mentioned in medical ethics, they are considered interdisciplinary as concepts that shape the debate in medical law (fiqh since their consequences are influential in the way which the parents and other individuals behave towards the embryo. Materials and Methods This analytical-descriptive research gathered relevant data in a literature search. After a description of the fundamentals and definitions, we subsequently analyzed juridical texts and selected one of the viewpoints that regarded the surrogacy contract revocation. Results The surrogacy contract is a contract based upon which two sides (infertile couple and surrogate mother involved in making the contract are obligated to fulfill its terms. Therefore, contract revocation can be surveyed from three perspectives: mutual revocation (iqala, legal unilateral wills (khiar al-majlis, khiar al-ayb, and contractual wills (khiar al-shart. Conclusion Revocation of a surrogacy contract either by the genetic parents, surrogate or the fertility clinic is allowed by Muslim jurists only when the embryo lacks personhood. Based on Islamic teachings, the termination of a surrogacy contract in and after the sixteenth week of pregnancy, when the embryo acquires a human soul (ensoulment, is not allowed. However religious thought emphasizes the moral status of the fetus before the sixteenth week and states that optional termination of the surrogacy contract is not permitted while the fetus becomes a human being.

  4. A adesão livre e voluntária à luz da jurisprudência dos Tribunais Superiores no Brasil

    Directory of Open Access Journals (Sweden)

    Mario De Conto

    2017-12-01

    Full Text Available O presente estudo analisa o conteúdo jurídico do Princípio da Adesão Livre e Voluntária no direito brasileiro, examinando os requisitos estabelecidos pela legislação para adesão à Cooperativa, bem como as possibilidades de restrição ao ingresso de novos associados e o discurso decisório dos tribunais superiores a respeito do tema. No Direito brasileiro, a legislação confere às Cooperativas a prerrogativa de não aceitar novos associados, mesmo diante de candidatos a associados que preencham os requisitos legais e estatutários para associarem-se, sempre que houver «impossibilidade técnica de prestação de serviços». A análise do discurso decisório do Superior Tribunal de Justiça revelou o reconhecimento, pela Corte, do Princípio Cooperativista da Adesão Livre e Voluntária, rechaçando o estabelecimento de requisitos discriminatórios e arbitrários como condições de adesão a Cooperativas.Recibido: 30 mayo 2017Aceptado: 01 septiembre 2017Publicación en línea: 22 diciembre 2017

  5. THE NECESSITY OF ENSURING PERSONAL RELATIONSHIPS WITH THE MINOR. GUARANTEEING THE BEST INTEREST OF THE CHILD IN TERMS OF THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

    Directory of Open Access Journals (Sweden)

    CARMINA ALECA

    2011-04-01

    Full Text Available We can not ignore, concerning the regulation of relationships between parents and children, a real assessment of the child's best interest, this being left to the courts or competent authorities’ decision. An issue that needs to be clarified is the divorce situation, when the court entrusts the child to one of the parents, who prevents the other one to have contact with him. Although the legal text refers only to acts committed after the pronouncement of the sentence of entrusting custody of minor, however the judicial practice stated that it is also about those situations in which these acts are committed before pronouncement of the judicial sentence. In this regard, assessing the child's best interest is also a sensitive issue and extremely important by the fact that the court must maintain a balance between the need to ensure a child's growth and harmonious development and respect for privacy and family, as it is covered in Article 8 of the European Convention on Human Rights, even if it is about the right of the child or of one of his parents.

  6. Personhood and Moral Status of The Embryo: It’s Effect on Validity of Surrogacy Contract Revocation according to Shia Jurisprudence Perspective

    Science.gov (United States)

    Tavakkoli, Saeid Nazari

    2017-01-01

    Background One of the most controversial issues related to the human embryo is the determination of the moment when an embryo is considered a human being and acquires a moral status. Although personhood and moral status are frequently mentioned in medical ethics, they are considered interdisciplinary as concepts that shape the debate in medical law (fiqh) since their consequences are influential in the way which the parents and other individuals behave towards the embryo. Materials and Methods This analytical-descriptive research gathered relevant data in a literature search. After a description of the fundamentals and definitions, we subsequently analyzed juridical texts and selected one of the viewpoints that regarded the surrogacy contract revocation. Results The surrogacy contract is a contract based upon which two sides (infertile couple and surrogate mother) involved in making the contract are obligated to fulfill its terms. Therefore, contract revocation can be surveyed from three perspectives: mutual revocation (iqala), legal unilateral wills (khiar al-majlis, khiar al-ayb), and contractual wills (khiar al-shart). Conclusion Revocation of a surrogacy contract either by the genetic parents, surrogate or the fertility clinic is allowed by Muslim jurists only when the embryo lacks personhood. Based on Islamic teachings, the termination of a surrogacy contract in and after the sixteenth week of pregnancy, when the embryo acquires a human soul (ensoulment), is not allowed. However religious thought emphasizes the moral status of the fetus before the sixteenth week and states that optional termination of the surrogacy contract is not permitted while the fetus becomes a human being. PMID:28868846

  7. Apostasy (Irtidâd in Islamic Jurisprudence; is it a Creedal or a Political Crime: Ibn al-Humam (d. 861/1457

    Directory of Open Access Journals (Sweden)

    Niyazi Kahveci

    2017-04-01

    Full Text Available This article aimed to explore the nature of the penalty of the apostasy (irtidâd to what extent it is creedal or political crime, with particular reference to Hanafite penal law which served as the law of Islamic world for a period of a millennium. In expounding this law I have chosen the text of jurist-author of this School, Ibn al-Humâm (d. 861/1457 which offered a mere document for the subject-matter. The analysis in this essay exposed that Hanafi juristic conception considered the act of apostasy not a creedal but a political offence. Thereof the ratio legis (‘illa of death penalty imposed to the apostate (murtad is not his commitment of disbelief (kufr but his renouncement of the social, legal and political authority and system of the state and abandoning his membership of Muslim community after once accepted it. Consequently he has been accounted as a potential threat as a warring enemy to the survival of the Muslim community and its state. I understand that the jurists did not give the state legal authority to interrogate and punish the disbelief of its subjects. Belief of the individual rests between him and God.

  8. 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)

  9. 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.

  10. Boundaries and restrictions of “The right to life” according to the European Court of Human Rights (Article 2 of ECHR jurisprudence

    Directory of Open Access Journals (Sweden)

    Pjereta Agalliu

    2018-03-01

    Full Text Available The first substantial right of the European Convention on Human Rights (henceforth referred to as the Convention is the right to life, set out in Article 2. This right was the first one to be attached to this Convention, because human life is more important than any other right. If one is deprived of the right to life in an arbitrary manner, all other rights are illusionary. Being a fundamental right, it is protected by a number of national and international 1 instruments and the most important one, which has made it most relevant in the aspect of legislative theory, but also as part of the application of the right to life, is the Convention. Based on the European Court of Human Rights’ (henceforth referred to as the Court caselaw, we manage to determine the boundaries and the restrictions of the right to life. This paper includes findings which relate to the concept of the right to life, the protection and guarantees that the Convention offers, Article 2 of the Convention in particular, and the criteria for the restrictions applying on the right to life. The active obligation of the state bears a special importance in this matter, along with the definition of the boundaries and restrictions of the right to life and the boundaries and restrictions applying to the obligations of the Adhering States to guarantee the protection of life and their responsibility in those cases recognized by the Convention when this right is restricted.

  11. 'Mother of God, Drive Putin Away': On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights

    NARCIS (Netherlands)

    J.D. Temperman (Jeroen)

    2017-01-01

    textabstractThis paper analyzes Pussy Riot’s Punk Prayer, the performance of which in a Moscow cathedral resulted in harsh penalties for members of this protest group. He argues that the content and performance of the song can be considered both religious – feminist religious speech contributions on

  12. Les droits de la femme dans la jurisprudence de la Cour Constitutionnelle égyptienne après les "Printemps Arabes"

    Directory of Open Access Journals (Sweden)

    Roberta Cupertino

    2015-07-01

      This work addresses the issue of women's rights in Islamic society. Particularly, attention is focused on a legal system, the Egyptian, who is heavily innervated by the principles of Islamic law. On the relationship between the principles of the Sharia and Women's Rights has repeatedly ruled the Constitutional Court that, with its peculiar interpretative reasoning on scriptural texts, has enabled the survival of the rules protecting women in the legal system of the State.

  13. Os quilombos perante o STF: a emergência de uma jurisprudência dos direitos étnicos (ADIN 3.239-9 The quilombos before Supreme Court: the emergence of an ethnic rights jurisprudency (ADIN 3.239-9

    Directory of Open Access Journals (Sweden)

    João Carlos Bemerguy Camerini

    2012-06-01

    Full Text Available O STF apreciará este ano a ADIN nº 3.239-9, na qual se discute a interpretação do direito das comunidades remanescentes de quilombos à titulação de suas terras (art. 68 do ADCT. Para além de prenunciar impactos sociais sobremodo relevantes, notadamente no mercado de terras, essa ação recoloca a Corte Suprema brasileira face aos dilemas da jurisdição constitucional, tais como a sua legitimidade democrática, o seu compromisso com a concretização dos direitos fundamentais, além da necessidade de forçá-la a perscrutar as consequências materiais de suas decisões. A partir da demonstração da tese da fundamentabilidade do direito às terras quilombolas e da crítica às teorias liberal-positivistas da jurisdição e da interpretação, este artigo visa demarcar as questões principais desse processo judicial, cujo enfrentamento se impõe, segundo métodos hermenêuticos adequados, se o tribunal quiser chegar a um provimento final efetivo, isto é, ser capaz de promover a pacificação social e promover a eficácia dos direitos fundamentais, que consubstanciam a razão última da função jurisdicional no contexto do Estado Constitucional.This year, the Brazilian Supreme Court will judge the Direct Action of Unconstitutionality 3239-9, which discusses the correct interpretation of the right of quilombo communities to their territories (article 68 of the Transitory Constitutional Provisions ACT. The decision of this process will bring social impacts, especially in the land market, and will compel the Court to face the dilemmas of constitutional jurisdiction, such as its democratic legitimacy, its commitment to the realization of fundamental rights and the problem of material consequences of hard cases decisions. Based on the thesis that the quilombo territories are fundamental rights, this text seeks to demarcate the key issues of this lawsuit, whose analysis is imposed, according to appropriate hermeneutical methods, if the Court wants to come to an effective jurisdictional providing, that is, capable of promoting social peace and promote the effectiveness of fundamental rights, which embody the ultimate reason of the judicial function in the context of the Constitutional State.

  14. Archives: Nnamdi Azikiwe University Journal of International Law ...

    African Journals Online (AJOL)

    Items 1 - 11 of 11 ... Archives: Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home > Archives: Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Log in or Register to get access to full text downloads.

  15. New technologies and the right to privacy in Nigeria: Evaluating the ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... The paper concludes that in spite of the wide use of new technologies, the jurisprudence protecting privacy is still largely underdeveloped in Nigeria. This is largely ...

  16. Nnamdi Azikiwe University Journal of International Law and ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence: Site Map. Journal Home > About the Journal > Nnamdi Azikiwe University Journal of International Law and Jurisprudence: Site Map. Log in or Register to get access to full text downloads.

  17. Nnamdi Azikiwe University Journal of International Law and ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence: Journal Sponsorship. Journal Home > About the Journal > Nnamdi Azikiwe University Journal of International Law and Jurisprudence: Journal Sponsorship. Log in or Register to get access to full text downloads.

  18. 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

  19. Victim participation in the criminal justice system in the European Union through private prosecutions: issues emerging from the jurisprudence of the European Court of Human Rights / Jamil Ddamulira Mujuzi

    Index Scriptorium Estoniae

    Mujuzi, Jamil Ddamulira

    2016-01-01

    Euroopa Inimõiguste Kohtu kohtupraktikast, mis puudutab erasüüdistusi. Erakaebuse esitamise õigusest ning kellel on õigus süüasja esitada, erakaebuse esitamisest, kui riik on keeldunud kaebust menetlusse võtmast

  20. 生命法学视野下的代孕法律行为研究%Research on the Legal Act of Surrogacy from the View of Life Jurisprudence

    Institute of Scientific and Technical Information of China (English)

    高艳莉

    2016-01-01

    Infertility patients have the real need of having children, and the people who use surrogacy exist objectively, but the corresponding laws and regulations are not perfect, which caused a series of disputes consequently. So it is urgent to define surrogacy accurately in China based on practicality, comb and analyze carefully the legal issues concerned with surrogacy, perfect the relevant laws and regulations, provide a solid guarantee for the legitimate rights and interests of surrogate motherhood and surrogate clients and make clear the legal requirements of surrogate implementation to effectively control the abuse of surrogacy.%不孕不育患者有生育子女的现实需要,使用代孕方式的人群是客观存在着的,而相应的法律规定尚不健全,由此便产生一系列纠纷. 鉴此,我国当务之急应是立足实际,准确界定"代孕"含义,对代孕所涉及的法律问题进行梳理和深入的分析,完善相关法律法规,在为代孕者及代孕委托方合法权益提供切实保障的同时,明确代孕实施法律要件,以有效控制代孕滥用现象.

  1. 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 present in this paper. The passage of measures to better control the public deficit has meant that the adoption of measures affecting the rights of compensation of public employees, especially, those civil servants employed on a group contract basis, has been challenged in the courts. On the other hand, mention is made of the publication of papers that reflect on the measures of administrative reorganization, the reduction in the number of public sector workers, the effect of labor reform on collective bargaining and the modification of working conditions for public workers working for public authorities.El artículo analiza las novedades jurisprudenciales y doctrinales aparecidas tras la aprobación del Estatuto básico del empleado público. En este sentido se inicia un recorrido por las últimas sentencias del Tribunal Constitucional respecto al derecho fundamental de acceso a la función pública, pasando por los requisitos de acceso a la función pública, las garantías del procedimiento de selección en cuanto a las medidas de discriminación positiva, políticas de igualdad e inserción de personas discapacitadas y finalizando con la adquisición y pérdida de la condición de funcionario. Hay que destacar que el contexto de crisis económica actual está presente en el trabajo. La aprobación de medidas de mayor control del déficit público ha comportado la impugnación ante los tribunales de justicia de la adopción de medidas que afectan a los derechos retributivos de los empleados públicos, especialmente del personal laboral. Por otra parte, se hace mención a la publicación de trabajos que reflexionan sobre las medidas de reorganización administrativa, reducción de trabajadores públicos, incidencia de la reforma laboral en la negociación colectiva y modificación de las condiciones de trabajo de los empleados públicos en el seno de las administraciones públicas.

  2. O princípio da capacidade contributiva na jurisprudência do Supremo Tribunal Federal The ability to pay principle in the decisions of the Brazilian Supreme Court

    Directory of Open Access Journals (Sweden)

    Leonel Cesarino Pessôa

    2009-06-01

    Full Text Available O objetivo deste trabalho é analisar a aplicação do princípio da capacidade contributiva pelo Supremo Tribunal Federal. A partir de uma pesquisa realizada no site do tribunal, foram verificadas setenta ocorrências das palavras-chave " capacidade contributiva" nos acórdãos da suprema corte brasileira até novembro de 2008. Para analisar as decisões, partiu-se dos trabalhos de alguns juristas italianos, em especial de Pietro Boria, que procuraram mostrar como, na itália, o princípio da capacidade contributiva foi aplicado tanto na proteção do interesse do contribuinte, como na proteção do interesse do fisco. Os acórdãos foram divididos em cinco grupos de acordo com o interesse protegido e a matéria envolvida. Concluiu-se que, no Brasil, ainda que, às vezes, o princípio tenha sido utilizado na proteção do interesse do contribuinte, foi quase sempre aplicado para a proteção do interesse do fisco.The objective of this paper is to analyze the application of the 'ability to pay' principle to decisions of the Brazilian Supreme Court. In research carried out on the court website, the term 'ability to pay' appeared 70 times in court decisions, until November, 2008. In order to analyze the decisions, I began with texts from Italian jurists, especially Pietro Boria, who sought to demonstrate that the ability to pay principle in Italy is applied both in the protection of taxpayer interests as well as the protection of the state. Decisions were divided into five groups, according to the interest protected and the subject involved. I concluded that, although some times the principle has been applied in the protection of the taxpayer interests, it was almost always applied in the protection of the state interests.

  3. Adjudicating socioeconomic rights

    African Journals Online (AJOL)

    Christo Heunis

    It is trite to say that the adjudication of socio-economic rights is a new enterprise in South African jurisprudence, as it is to the jurisprudence of many other jurisdictions. Professor van Rensburg's paper seeks to analyse the influence of political, socio-economic and cultural considerations on the interpretation and application ...

  4. De methode der rechtswetenschap vanuit kritisch-rationeel perspectief

    NARCIS (Netherlands)

    J.A.I. Wendt (Johannes Andries Ivar)

    2008-01-01

    textabstractThis book is meant to be a qualitative analysis of the relatively recent debate on the methodology of jurisprudence in the Netherlands from a critical rationalist point of view. It may, however, also serve as an introduction to critical rationalism and its importance to jurisprudence, in

  5. Nnamdi Azikiwe University Journal of International Law and ...

    African Journals Online (AJOL)

    Focus and Scope. Nnamdi Azikiwe University Journal of International Law and Jurisprudence (NAUJILJ) is a scholarly, online/print, open access, peer-reviewed and fully refereed journal which focuses strictly on issues of international law and jurisprudence. The Journal is abstracted and indexed with African Journals ...

  6. Revue Burkinabè de droit

    African Journals Online (AJOL)

    la RBD se compose de trois parties : doctrine - jurisprudence - chronique de législation. La partie doctrine comprend des articles de droit de burkinabè, écrits essentiellement par les enseignants de l'UFR/Sciences Juridiques et Politiques. La partie jurisprudence comprend une sélection des décisions et arrêts des ...

  7. Separation of powers in Ghana: The evolution of the political ...

    African Journals Online (AJOL)

    This article examines the evolution and current status of the political question doctrine in Ghanaian jurisprudence, which developed from American jurisprudence. It begins by briefly discussing the history of the doctrine and its modern application in America. It then discusses how this doctrine was imported into Ghana and ...

  8. DÄNEMARK (.dk)

    DEFF Research Database (Denmark)

    Wallberg, Knud

    2017-01-01

    An analysis of the regulation of the .dk top level domain and of the jurisprudence relation to .dk domain name disputes......An analysis of the regulation of the .dk top level domain and of the jurisprudence relation to .dk domain name disputes...

  9. A ponderação de direitos fundamentais como critério para o controle jurisdicional de políticas públicas: decisionismo (leia-se ativismo judicial ou juízo fundamentado? uma análise da jurisprudência do Supremo Tribunal Federal

    Directory of Open Access Journals (Sweden)

    Mônia Clarissa Leal

    2012-08-01

    Full Text Available Em tempos de neoconstitucionalismo, em que os ordenamentos jurídico-constitucionais são marcados por um caráter principiológico, os Tribunais Constitucionais ganham destaque, sendo, contudo, objeto de críticas, pautadas, sobretudo, na ausência de critérios objetivos para a ponderação e na extensão dada à atuação do magistrado, que abriria caminho para o assim chamado “ativismo judicial”. Neste contexto é que se pretende analisar a atuação do Supremo Tribunal Federal brasileiro, a fim de verificar-se até que ponto suas decisões observam os elementos da ponderação, constituindo-se em juízos fundamentados, ou se caracterizam como simples “decisionismo”, que poderia ser classificado como uma espécie de ativismo judicial.

  10. A CORTE EUROPEIA DE PROTEÇÃO AOS DIREITOS HUMANOS E O DIREITO HUMANO À ALIMENTAÇÃO: PREVISÕES INTERNACIONAIS E JURISPRUDÊNCIA / AN EUROPEAN COURT OF HUMAN RIGHTS PROTECTION AND THE HUMAN RIGHT TO FOOD: INTERNATIONAL FORECASTS AND JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Dirceu Pereira Siqueira

    2014-04-01

    Full Text Available O presente trabalho teve por escopo tecer alguns comentários sobre o direito humano à alimentação, de modo que em tal análise o foco foi a previsão internacional desse direito, entre os inúmeros instrumentos internacionais, para que somente assim seja possível fixar parâmetros de reconhecimento a esse direito. Vários instrumentos internacionais foram apontados, sem, contudo, haver o intento de exauri-los, mas apenas e tão somente almejando-se demonstrar sua previsão em instrumentos de grande relevo internacional. Para tanto, partiu-se da análise do direito humano à alimentação enquanto direito consagrado na esfera internacional por uma série de instrumentos, para somente então demonstrar o alcance jurídico do termo, delimitação necessária à completa compreensão do tema proposto. Na sequência, tendo como foco deste estudo o sistema europeu de proteção dos direitos humanos, buscou-se apontar a importância dos sistemas regionais de proteção dos direitos humanos e, com base nessas premissas, adentrar de maneira mais minuciosa para a análise do sistema europeu, demonstrando-se, então, de maneira singela, o seu funcionamento. Finalmente, foi possível abordar alguns casos concretos, de modo a demonstrar a forte atuação desse sistema na proteção dos direitos humanos, em especial quanto ao direito humano à alimentação. Palavras-chave: Direitos humanos. Sistemas regionais de proteção dos direitos humanos. Sistema europeu de proteção dos direitos humanos. Direito humano à alimentação.

  11. Nexo causal em matéria penal: análise da jurisprudência dos tribunais de justiça Case law regarding causal relationship between conduct and result to attribute criminal liability in brazilian state supreme courts

    Directory of Open Access Journals (Sweden)

    Luisa Moraes Abreu Ferreira

    2011-06-01

    Full Text Available Este artigo discute uma pesquisa empírica apresentada em 2009 como Trabalho de Conclusão de Curso na Direito GV sobre a definição da causalidade para responsabilização criminal nos tribunais de justiça. Foram analisadas 84 apelações criminais julgadas entre 2007 e 2008 e extraídos resultados quantitativos e qualitativos relacionados aos dados do processo, ao resultado da decisão e à argumentação. A análise desses resultados levou a cinco principais constatações: (1 a discussão sobre nexo causal ocorre quase exclusivamente em casos de crimes culposos; (2 muitas vezes, apesar de discutido pelas partes, a existência de nexo causal não é afirmada no acórdão; (3 o nexo causal é frequentemente afirmado com pouca fundamentação e, em geral, com menos argumentos do que a afirmação de culpa; (4 a teoria mais utilizada pelos tribunais é a da equivalência das condições; e (5 o nexo causal é frequentemente afirmado como decorrência da culpa.This paper reports empirical research presented in 2009 as final dissertation for graduation as bachelor of laws at direito gv about the definition of causation to attribute criminal liability in the brazilian state supreme Courts. A total of 84 criminal appeals, ruled between 2007 and 2008, were analyzed and quantitative and qualitative results related to procedure data, results of the decision and reasoning were extracted. Analysis of these results led to five major findings: (1 discussion of causation occurs almost exclusively in cases of willful crimes, (2 often, though discussed by the parties, a causal relationship is not asserted in the decision, (3 causal relationship is often stated with little reasoning and, generally, with fewer arguments than the statement of negligence, (a the causal theory most used by the courts is that cause is every necessary condition for the event, and (5j causal relationship is often asserted as a result of negligence.

  12. DEBER DE CONGRUENCIA (RECTIUS, CORRELACIÓN DE LA SENTENCIA PENAL Y OBJETO DEL PROCESO: UN PROBLEMA NO RESUELTO EN LA LEY E INSOLUBLE PARA LA JURISPRUDENCIA CHILENA MATCHING DUTY (RECTIUS, CORRELATION OF THE JUDGEMENT AND THE SUBJECT OF THE CRIMINAL PROCEDURE: AN UNRESOLVED PROBLEM IN THE LAW AN INSOLUBLE FOR THE CHILEAN JURISPRUDENCE

    Directory of Open Access Journals (Sweden)

    Carlos del Rio Ferretti

    2008-01-01

    Full Text Available El presente estudio trata del deber de correlación de la sentencia penal y los problemas de su aplicación presentados en la jurisprudencia (y doctrina chilena. El tema es analizado fijando el supuesto técnico previo sobre el cual se construye dicho deber, como es la determinación del objeto del proceso a partir de un preciso concepto del hecho punible desde una perspectiva procesal. Es por ello que se analizan las posiciones teóricas y técnicas sobre el concepto del hecho, más apropiadas para responder a las complejas cuestiones comprendidas en el deber de correlación de la sentencia penal, destinadas a resolver los problemas de aplicación explicados en el estudio. Con ese propósito se analizan las teorías naturalistas y normativas del hecho y se intenta demostrar las repercusiones prácticas de sus respectivas aplicaciones.This research is about the matching duty of the criminal judgement and problems that come along with its application by the Chilean tribunals (and Literature. The topic is analyzed setting the technical support after which builds on that obligation, as in the definition of the subject of the criminal procedure from a precise concept of the punishable act from a procedural perspective. This is the reason why we study the technical and theoretical positions about the concept of «fact» more appropriate to understand the complex issue that involves the matching duty of the criminal judgement, to resolve the problems that come along with is application as we explain in this study. To this purpose we analyze naturalists and normatives theories about the concept of «fact» and intend proving the practical consequence wether you submit to one or another theory.

  13. On the Falsification Quality of the Chinese Reeducation through Labour --one critical view on Jurisprudence%论我国劳动教养制度的可证伪性 --一种法理上的批判性视野

    Institute of Scientific and Technical Information of China (English)

    黄洪

    2006-01-01

    根据科学家卡尔·波普尔(Karl Popper)的科学哲学观,任何科学理论都有其"可证伪性".我国目前的劳动教养制度在合法性、合理性、监督制约性、救济性方面都存在着可批判性,已经与当今社会的法治精神背道而驰.因此,我们应该废除劳动教养制度.

  14. The contract of sale and the consumer of petroleum products in ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT · Advanced Search · Current Issue · Archives · Journal Home > Vol 1 (2010) >. Log in or Register to get access to full text downloads.

  15. African Journals Online (AJOL)

    African Journals Online (AJOL)

    African Journals OnLine (AJOL) is the world's largest online library of ... and find other information sources and more resources for researchers and journals. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence.

  16. Download this PDF file

    African Journals Online (AJOL)

    IKENNA

    Women's Rights in Matrimonial Jurisprudence under Islamic Family. Law in Nigeria: A Need ... unity, endurance, permanence, freedom, dialogue, and the like. All the .... The suras state: And marry those among you who are single, and those.

  17. Principles of International Economic Law, and the Right to Economic ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  18. 76 FR 66758 - Remedies for Small Copyright Claims

    Science.gov (United States)

    2011-10-27

    ... instructions. FOR FURTHER INFORMATION CONTACT: Catherine Rowland, Counsel, Office of Policy and International... Involvement: State courts do not have expertise in copyright jurisprudence. As noted above, Section 1338 of...

  19. Untenable development

    International Nuclear Information System (INIS)

    Coimbra, Guilhermina Lavoz

    1995-01-01

    The author analyses the energy - the role of law and environmental rights for sustainable development - from a critical point of view that is in accordance with internationally accepted jurisprudence. (author). 12 refs

  20. Naval Law Review, Volume 51, 2005

    National Research Council Canada - National Science Library

    Romero, Joseph; Belliss, Richard D; Tideswell, Tammy P; Antolin-Jenkins, Vida M; O'Neil, Kevin R; Wildhack, III, William A; McLaughlin, Rob; Gonzalez, Jason A; Sarnoski, Stephen R

    2005-01-01

    .... This issue of "Naval Law Review" contains the following articles: "Of War and Punishment: 'Time of War' In Military Jurisprudence and a Call for Congress to Define Its Meaning," by LCDR Joseph Romero, JAGC, USN...

  1. Effect of Globalization on Sovereignty of States | Oji | Nnamdi ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  2. 192 TAXPAYER'S RIGHT TO REFUND UNDER THE NIGERIAN LAW

    African Journals Online (AJOL)

    Fr. Ikenga

    The jurisprudence of this paper therefore is an examination of the actual legal status ... Formerly, Coordinator, Department of Business Law, Faculty of Law, University ..... If any company has paid tax for any year of assessment alleges that any ...

  3. A comparative analysis of copyright enforcement provisions in ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 5 (2014) >. Log in or Register to get access to full text downloads.

  4. Development, concept and scope of copyright protection in Nigeria ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 5 (2014) >. Log in or Register to get access to full text downloads.

  5. Download this PDF file

    African Journals Online (AJOL)

    MJM Venter

    constitutional jurisprudence, in .... that the use or application of the spoliation remedy – and probably by implication common law remedies in general .... to possess under all circumstances, for instance heroin or a machine gun, which someone may not ...

  6. The limits of the tort of negligence in redressing oil spill damage in ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 5 (2014) >. Log in or Register to get access to full text downloads.

  7. The Enigmatic Nature of the Israeli Legal System

    African Journals Online (AJOL)

    NWUuser

    The picture that emerges from the jurisprudence of the South African courts is that ..... See Garreth Anver Prince v South Africa Communication 255/02 (African Commission ...... Modern Ghana News 2010 Ghana, Nigeria to Exchange Prisoners.

  8. Legal implications of employment casualisation in Nigeria: A cross ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Casual workers are not given the same benefits (such as compensation for ... to trade unions and bargain collectively and various social security benefits) that ...

  9. Institutional Mechanisms for Human Rights Protection in Nigeria: An ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper has focused on the institutional mechanisms for human rights protection ... is discussed in line with its powers and duties under the law that established it.

  10. Violence against Persons (Prohibition) Act 2015 and other existing ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Many international instruments abound in relation to this. ... This paper looks into the International and National Instruments in relation to their prospects, challenges ...

  11. Right of a patient to refuse medical treatment: justification for judicial ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper discusses the right of a patient to refuse medical treatment and juxtaposes ... This is achieved by an expository review of relevant case law and scholarly ...

  12. Complementarity and completed trials: reforming the Ne bis in idem ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper is concerned with the question whether article 20(3) of the Rome Statute is ... Rome Statute, Ne bis in idem, double jeopardy, International Criminal Court ...

  13. Effectiveness of Nigeria's international obligations in curbing ...

    African Journals Online (AJOL)

    Effectiveness of Nigeria's international obligations in curbing domestic violence. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper examines the issue of domestic violence in Nigeria to determine the ...

  14. The Nigerian employee and the quest for confirmation: examining ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Hence, this paper through desk base research methodology examines the concept of ... An analysis of case law shows that there is no procedure for termination of ...

  15. Sources of law, voluntary obedience and human interactions: an ...

    African Journals Online (AJOL)

    Sources of law, voluntary obedience and human interactions: an analysis. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper examines ways in which the various sources of law can be modified in such ...

  16. Fulltext PDF

    Indian Academy of Sciences (India)

    Faculty of Jurisprudence, Senshu University, Chiyoda-ku, Tokyo, 101-8425, Japan. (Email ... passes by without a paper on sexual selection published in journals of ...... the XXVI International Ethological Conference held in Ban- galore, India ...

  17. Same-sex marriage, civil marriage and cohabitation: the law, the ...

    African Journals Online (AJOL)

    Same-sex marriage, civil marriage and cohabitation: the law, the rights and responsibilities. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This paper examined the law surrounding marriage rights and ...

  18. Amedeo Avogadro

    Indian Academy of Sciences (India)

    arrived in 1860 at the First International Chemistry Congress held at ... rally took up the family profession after receiving bachelor of jurisprudence when he ... He brought out a publication in 1814 on gas entities, in 1821 a paper on theories.

  19. The role of non-governmental organisations in the environmental ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... However, this paper analyses the role of NGOs in the environmental justice paradigm. ... review of the influence of NGOs in the environmental justice paradigm.

  20. Legalis.net

    CERN Document Server

    Site Web regroupant de nombreuses publications, associations, cas de jurisprudence, modèles de contrats dans le domaine juridique de l'informatique, du multimedia, de l'Internet et des télécommunications.

  1. Disability Discrimination and the right of disabled persons to access

    African Journals Online (AJOL)

    StudentLab

    jurisprudence of the United States of America as well as to guidelines provided ... gender discrimination, but also disability discrimination especially, in the workplace, ..... Montalti and Bellengère "Is a right to affirmative action the solution to the.

  2. Executive orders in Nigeria as valid legislative instruments and ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 3 (2012) >. Log in or Register to get access to full text downloads.

  3. Relevance of international humanitarian law to the deployment of ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 6 (2015) >. Log in or Register to get access to full text downloads.

  4. Legislating Women's Affirmative Action and its Constitutionality in ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  5. Consumer Rights as Constitutional Rights-A Comparative Analysis ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  6. Oversight functions of the legislature: An instrument for nation building

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 1 (2010) >. Log in or Register to get access to full text downloads.

  7. The right to self-determination under international law: The current ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 6 (2015) >. Log in or Register to get access to full text downloads.

  8. Project Work by Students for First Degree: An Appraisal | Ekwenze ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  9. Statutory limitations to testamentary freedom in Nigeria: A ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 4 (2013) >. Log in or Register to get access to full text downloads.

  10. Civilians in non-international armed conflicts: The contemporary ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 6 (2015) >. Log in or Register to get access to full text downloads.

  11. The principle of the common heritage of mankind | Owolabi | Nnamdi ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 4 (2013) >. Log in or Register to get access to full text downloads.

  12. The rule of law in governance in Nigeria | Nwogu | Nnamdi Azikiwe ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 1 (2010) >. Log in or Register to get access to full text downloads.

  13. The internet and its facility for criminality: some unique difficulties for ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 5 (2014) >. Log in or Register to get access to full text downloads.

  14. Focus on intersubjectivity and jural relations | Oraegbunam | Nnamdi ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT · Advanced Search · Current Issue · Archives · Journal Home > Vol 3 (2012) >. Log in or Register to get access to full text downloads.

  15. The Requirement of Geographical Spread in Elections into ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 2 (2011) >. Log in or Register to get access to full text downloads.

  16. A critical examination of the impact of armed conflict on children: A ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 6 (2015) >. Log in or Register to get access to full text downloads.

  17. The State of refugees and internally displaced persons in Nigeria: A ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 3 (2012) >. Log in or Register to get access to full text downloads.

  18. Index: Mizan Law Review (Vol. 1 to 10)

    African Journals Online (AJOL)

    eliasn

    Environmental Law. Evidence .... Protection of the Environment and the. International ..... Counter-intervention, Invitation, Both or. Neither: An ... Prioritizing Water Use Rights in Ethiopia: ... Notes on Jurisprudence: Natural Law (169-. 178).

  19. Page | 131 RISING CASES OF RAPE OFFENCES IN NIGERIA: NEW ...

    African Journals Online (AJOL)

    Fr. Ikenga

    Key words: Rape, Rising Cases, New Measures, Penetration, Criminal Justice System, Tripod. 1. Introduction ... International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka. .... 10 Sexual Offences Act 2003 of the UK.

  20. Monitoring good corporate governance in developing countries ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... The call for good corporate governance was as a result of the scandal and collapse ... This paper made use of legislation, regulations (Codes of best practices) and ...

  1. Dealing with Sexual Assault, Challenges, and Insights

    Science.gov (United States)

    2015-02-11

    Justice (NIJ), scholars at the Research Triangle Institute, International (RTI) disclosed 58% of college women experienced sexual assault while...fuels the debate on whether jurisprudence should rest with the civilian or military courts to prosecute sexual assault cases. DoD came under fire last...prevention efforts, notably on whether civilian law or military should have jurisprudence over CA. Senator Kirsten Gillibrand (D-N.Y.) sponsored the

  2. Theoretical and Practical Significance of the Issue of Maritime Delimitation in the Law of the Sea

    OpenAIRE

    Lakićević-Đuranović, Bojana

    2017-01-01

    This paper aims to show the significance of maritime delimitation in the Law of the Sea, as well as the contribution of international jurisprudence to the creation of the rules of maritime delimitation. The decisions of the International Court of Justice (ICJ) and the awards of arbitration tribunals are especially significant in the part of the Law of the Sea dealing with maritime delimitation. Based on the analysis of the principle of equity and the method of equidistance, the jurisprudence ...

  3. Constitutionalism and Democracy in Contemporary International Community

    OpenAIRE

    Padjen, Ivan

    1992-01-01

    Starting from the insight that jurisprudence of legal theory should be concerned primarily with,on the one hand, international law, and, on the other, constitutional developments, the paper; analyzes some prominent conceptions of constitutionalism and democracy in international community and municipal legal orders; formulates a new set of criteria for the analysis of constitutionalism and democracy in international law; and argues that Laswell and McDougal's policy oriented jurisprudence offe...

  4. The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India

    Directory of Open Access Journals (Sweden)

    Allen Mendenhall

    2010-12-01

    Full Text Available E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

  5. REFLEKSI ILMU HUKUM DALAM ANALISIS PENEGAKAN HUKUM PEMBERANTASAN KORUPSI DI INDONESIA

    Directory of Open Access Journals (Sweden)

    Ino Susanti

    2014-01-01

    Full Text Available Several analyses on corruption and its eradication approach have been proposed by various research studies, especially from social and humanity field of study. Commonly, the main notion of these analyses concerns with the overlooking measure on corruption eradication by the law enforcement. These notions bring about a serious challenge for the conception of jurisprudence; what is the more compatible conception, and how do they match it with the law enforcement matters? A reflexive comprehension regarding materials such as the essence corruption definition, structure of juris-prudence, and finally, continuously debate over legal theories, may give a justice based approach for the corruption eradication.   Key words: analysis of corruption, jurisprudence, law enforcement

  6. Unpacking the Public Trust Doctrine: A Journey into Foreign Territory

    Directory of Open Access Journals (Sweden)

    E van der Schyff

    2010-12-01

    Full Text Available The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence. It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.

  7. POLITIK HUKUM DALAM PUTUSAN HAKIM (The Politic of Law in a Verdict

    Directory of Open Access Journals (Sweden)

    Teguh Satya Bhakti

    2016-03-01

      A law (written law was never full, clear and complete set of community life, so it is always lagging behind follows the development of society. To keep abreast of it, the law should always be developed in order to remain update and relevant to the times. Implementation and development of legislation going through the verdict (jurisprudence in the judicial process. In other words, jurisprudence intended as legal development, to meet the legal needs of justice seeker. Implementation of the functions of law enforcement and justice as well as the function of legal discovery (rechtsvinding embodied in a verdict (jurisprudence, should refer to Pancasila as the norm of fundamental state (staatsfundamentalnorm or wisdom / genius of the national (national wisdom / national genius and 1945 as the basic law of the state, so that the decision reflects the sense of justice of the nation and the people of Indonesia as well. It declares a political manifestation of the law in a verdict.

  8. 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.

  9. A particular articulation of judicial activism of the CJEU in its approach towards international law

    DEFF Research Database (Denmark)

    Cebulak, Pola

    2012-01-01

    This paper seeks to provide a theoretical and methodological framework that can be used in assessing the judicial activism of the Court of Justice of the European Union (CJEU) in its jurisprudence dealing with public international law. The underlying questions are: What underpins the judicial...... activism of the EU judge in the jurisprudence concerning the relationship between European and public international law? How does the EU judge’s approach to international law shape the relationship between the two legal orders? The chapter proposes the hypothesis that judicial activism and a pluralistic...

  10. EVOLUTION OF LEGAL ADDED VALUE FOR ECONOMY BETWEEN KNOWLEDGE AND RISK

    Directory of Open Access Journals (Sweden)

    Ioan I, GĂF-DEAC

    2014-11-01

    Full Text Available This paper deals with the management of welfare maximization problems about New Economy etween knowledge and risk. Integrative systemic perspectives are analyzed between knowledge economy and risk. Also describes the prerequisites for formalization utilitarian jurisprudence regarding integrative systems outlook for the economy between knowledge and risk. In this context, it is estimated that in management, economics and law may be formalized utilitarian jurisprudence. Freedom and efficiency of governance, distribution of rights and obligations regarding registration report completes the study of phase between freedom of cyber-space and legal normativity.

  11. The creative powder of the judge within the mix of constitucional procedures

    Directory of Open Access Journals (Sweden)

    Natalia Bernal-Cano

    2010-06-01

    Full Text Available This article provides an explanatory summary of the judicial creativity so as to combine elements of constitutional processes to strengthen fundamental rights. It then presents an analysis of the sources of law and their equivalents in constitutional reasoning. To underline equity in the importance of sources, this article seeks to encourage the conciliatory work of the judges and creation of law within the limits of a coherent jurisprudence. The article then examines those areas in which the jurisprudence may change and the advantages of this for the evolution of constitutional law. One of the most important jurisprudential changes is the trend towards articulating the constitutional procedures.

  12. « When a woman’s hurt becomes an injury: “hardship” as grounds for divorce in Iran ». Hawwa: Journal of Women of the Middle East and the Islamic World, Vol. 5, N° 1, 2007, pp. 111-126.

    OpenAIRE

    Van Engeland, Anicée

    2010-01-01

    L’A. analyse la notion de difficultés et de souffrance de l’épouse comme concept de jurisprudence islamique justifiant un divorce. C’est grâce à cela que de nombreuses femmes obtiennent le divorce : la jurisprudence iranienne s’est en effet inspirée de ce concept pour faire de la souffrance une cause de divorce. La question que se pose l’A. est de savoir quand cette souffrance devient une blessure justifiant le divorce et qui en décide. Selon l’A., afin de suivre les évolutions sociales et ré...

  13. Sayyid Quṭb’s critique of fiqh

    OpenAIRE

    Thameem Ushama

    2014-01-01

    Sayyid Quṭb’s views on fiqh (jurisprudence) have been the subject of significant critique. This paper seeks to understand the bases of such criticisms through a qualitative content analysis of his exegesis and other writings. We begin with a brief survey of the views of scholars who have spoken in favour of and against him, followed by a brief biographic profile of Quṭb. This paper focuses on Quṭb’s critique of three key issues. First, the terms “Fiqh al-Awrāq” (jurisprudence of papers) and “...

  14. REVITALISASI NALAR HUKUM ISLAM: DARI GERAKAN POLITIK MENUJU KESADARAN ETIK

    Directory of Open Access Journals (Sweden)

    Hijrian A. Prihantoro

    2017-06-01

    Full Text Available This paper aims to discuss the revitalization of the logical reasoning’s epistemology of Islamic Jurisprudence using the sociology of knowledge' approach as the reconstructive effort to see the relation of the religious text and political context of Indonesian social reality. Based on the historical analysis of the diachronic data, comparing the various political phenomena in the past Islamic history to the nowadays situation, the study revealed that the logical reasoning of Islamic jurisprudence was always related dialectically with the human social life as a fact that Islamic studies have been able to change the paradigm and mindset of the civilization.

  15. Review on “The Counter-Revolution of Science. Studies on the Abuse of Reason” by Friedrich August von Hayek

    Directory of Open Access Journals (Sweden)

    Mihaltchuk Nikolay Mihailovitch

    2013-12-01

    Full Text Available The Austrian-English economist and social thinker Hayek sets the problem of "scientism" criticism, i.e. an illegal shift of methods from natural science to humanities. To solve this problem Hayek analyses the history of natural sciences and their separation from studies that are corroborated by historical experience (like jurisprudence, history, classic literature.

  16. OGIRISI: a New Journal of African Studies - Vol 12 (2016)

    African Journals Online (AJOL)

    Maliki Jurisprudence and Boko Haram ideology versus Nigerian nation building: need for pluralism in Islamic praxis · EMAIL FREE FULL TEXT EMAIL FREE FULL TEXT · DOWNLOAD FULL TEXT DOWNLOAD FULL TEXT. Ikenga K.E. Oraegbunam, 25-45. http://dx.doi.org/10.4314/og.v12i1.2 ...

  17. Environmental justice and the rights of indigenous peoples: international and domestic legal perspectives

    National Research Council Canada - National Science Library

    Westra, Laura

    2008-01-01

    ... Peoples: Some Recent ATCA Jurisprudence First Nations of Canada and the Legal and Illegal Attacks on their Existence 71 103 125 PART III - JUSTIFYING GENOCIDE: PRINCIPLES AND REALITY 7 8 Genocide and Eco-crime: The Interface Aboriginal Rights in Domestic and International Law, and the Special Case of Arctic Peoples 163 187 PART...

  18. Author: M Swanepoel LEGAL ASPECTS WITH REGARD TO ...

    African Journals Online (AJOL)

    user

    Associate Professor, Unisa, School of Law, Department of. Jurisprudence. E-mail: MagdSwanem@unisa.ac.za. 1. Burchell Principles of ..... a result, he lapsed into an automatistic state, during which he began shooting at people in the bar, killing one person. The question was whether the accused had suffered from a mental ...

  19. African Journals Online (AJOL)

    African Journals Online (AJOL)

    Historically, scholarly information has flowed from North to South and from West to East. ... or keywords,; and find other information sources and more resources for researchers and journals. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Lagos Journal of Library and Information Science.

  20. The Machinery for Enforcement of Domestic Arbitral Awards in Nigeria

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Arbitration is a private means of resolving dispute which is resorted to, chiefly because the parties choose to avoid as much as possible employing the state machinery for dispute resolution, namely the court and its dreaded time consuming ...

  1. Království práva na zemi

    Czech Academy of Sciences Publication Activity Database

    Sobek, Tomáš

    2013-01-01

    Roč. 152, č. 11 (2013), s. 1084-1112 ISSN 0231-6625 R&D Projects: GA ČR GAP408/12/2579 Institutional support: RVO:68378122 Keywords : jurisprudence * ethical subjectivism * materialism Subject RIV: AG - Legal Sciences

  2. Examining the Application of Deterrence in Sentencing in Malawi

    African Journals Online (AJOL)

    MJM Venter

    2017-12-18

    Dec 18, 2017 ... Various UN and regional instruments and the jurisprudence of international human rights bodies echo the need for a prospect of release: see Gumboh 2017 JAL. 35. Van Den Haag 1982 J Crim L & Criminology 1034. 36. Andenaes Punishment and Deterrence 22. 37. Cavadino and Dignan Penal System ...

  3. Ubuntu and the law in South Africa | Mokgoro | Potchefstroom ...

    African Journals Online (AJOL)

    The new constitutional dispensation, like the idea of freedom in South Africa, is also not ... In an attempt to define it, the concept has generally been described as a ... Ubuntu can therefore become central to a new South African jurisprudence ...

  4. Ibn Rushd, Abu'l Waleed Muhammad Ibn Ahmad Ibn Muhammad [known as Averroes] (1128-98)

    Science.gov (United States)

    Murdin, P.

    2000-11-01

    Islamic philosopher, lawyer, physician and astronomer, born in Cordoba, Spain, became physician to the Caliph of Morocco. Ibn Rushd's controversial views on philosophy—he was the greatest Islamic proponent of ARISTOTLE—led to the burning of his books and banishment by the Caliph. He wrote numerous books (87 survive) dealing with philosophy, logic, medicine, jurisprudence and astronomy, which ...

  5. [Information technology in medicine - some legal observations].

    Science.gov (United States)

    Siegal, Gil

    2013-05-01

    Information Technology (IT) and computing capabilities are revolutionizing the practice of medicine in an unprecedented way. Some current legal and ethical concerns evolving from this revolution are addressed, pointing to the emerging concepts in Israeli jurisprudence, which regards medical IT as an important contribution to patient empowerment, to medical risk management and in managing the resources of a national health system.

  6. Judikatura Evropského soudu pro lidská práva v oblasti problematiky „translidí“

    Czech Academy of Sciences Publication Activity Database

    Doležal, Tomáš

    2013-01-01

    Roč. 3, č. 1 (2013), s. 39-47 ISSN 1804-8137 R&D Projects: GA ČR GAP408/12/2564 Institutional support: RVO:68378122 Keywords : transgender * jurisprudence * family life Subject RIV: AG - Legal Sciences

  7. PUBLIC ACCESS TO PRIVATE LAND IN SCOTLAND

    African Journals Online (AJOL)

    David

    The Forum's work led to advice to the Scottish Government concluding that ... respect of the facilitation and upholding of access rights. This is ...... particular protection of a person's rights in respect of private and family life and the home under ... jurisprudence emphasising the necessity of a balancing-of-interests approach.

  8. The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship

    NARCIS (Netherlands)

    Yanev, Lachezar; Meisenberg, S; Stegmiller, I

    2015-01-01

    The doctrine of JCE has played an important role in the jurisprudence of the ECCC, seeing as it was used to convict the accused in both cases that the Court has adjudicated thus far. This case law, although not so voluminous, has quickly managed to attract a lot of attention, largely due to the fact

  9. Reflections on Judicial Views of Ubuntu | Himonga | Potchefstroom ...

    African Journals Online (AJOL)

    Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal ...

  10. The Morality of Aspiration: A Neglected Dimension of Law and Morality

    NARCIS (Netherlands)

    W. van der Burg (Wibren)

    1999-01-01

    markdownabstractIntroduction In The Morality of Law, Fuller introduces the distinction between the morality of duty and the morality of aspiration, and applies it to problems of jurisprudence. 1 In moral theory, both types of morality may be easily associated (though never completely

  11. The right to die: the place of religion, ethics and the law | Kolade ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Life is the state of being alive; it is a prominent feature of any living being. ... The issue of 'right to die' and end-of-life-decisions deeply rooted in the concept of ...

  12. The Employment Equity Act, 1998

    African Journals Online (AJOL)

    MJM Venter

    EEA from our equality jurisprudence in terms of section 9 of the Bill of Rights. ..... standard, in effect applied a form of fairness review to the case at hand.16 Cameron J .... gender representation to the third decimal;26 Coetzer's non-filling of ...... four black women, nine coloured men, one coloured woman, seven Indian men, ...

  13. The Modes of Liability at the ICC: The Labels that Don't Always Stick

    DEFF Research Database (Denmark)

    Aksenova, Marina

    2015-01-01

    The article critically analyses recent developments in the jurisprudence of the International Criminal Court. In particular, it scrutinises two convictions rendered by the Court to the date with the view of assessing the viability of the modes of liability employed by the ICC. The argument is tha...

  14. Children Are Unbeatable.

    Science.gov (United States)

    Freeman, Michael

    1999-01-01

    Argues that outlawing corporal punishment of children by parents in the U.K. would be in line with developments in European jurisprudence. Maintains that the United Kingdom is in breach of several international law norms. Claims that prohibiting corporal punishment would lead to less abuse and thus less interference with parental autonomy.…

  15. 76 FR 16712 - Participation by Religious Organizations in USAID Programs

    Science.gov (United States)

    2011-03-25

    ... AGENCY FOR INTERNATIONAL DEVELOPMENT 22 CFR Part 205 RIN 0412 AA-69 Participation by Religious Organizations in USAID Programs AGENCY: United States Agency for International Development (USAID). ACTION... Establishment Clause jurisprudence with respect to the use of Federal funds for inherently religious activities...

  16. Canadian High School Athletics and the Saga of Continuing Gender Discrimination

    Science.gov (United States)

    Clarke, Paul T.

    2013-01-01

    In most Canadian jurisdictions, high school athletics are still governed by outdated and sexist views about participation. The author argues that the current approach is discriminatory and violates human rights laws. In addition, a careful analysis of the jurisprudence reveals a host of specious arguments that keeps athletically talented female…

  17. 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…

  18. Knowledge Theory in Ibn Rushd Literature and Reflection Thereof on Its Educational Philosophy

    Science.gov (United States)

    Al-Rsa'i, Mohammed

    2018-01-01

    This study aims to examine Ibn Rushd perceptions in terms of Knowledge and reflection thereof on his educational philosophy. This study reached at a conclusion that Ibn Rushd partaking had its important role in framing the Knowledge theory and maintain it away from deviations and in the same time originated much jurisprudences starting from…

  19. 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 state's…

  20. A Graduate Professional Program in Translation.

    Science.gov (United States)

    Waldinger, Renee

    1987-01-01

    The City University of New York Graduate School's professional program in translation combines high-level, specialized language learning in French, German, and Spanish with related graduate work in such disciplines as international affairs, finance, banking, jurisprudence, literature, and computer science. (CB)

  1. The Significance of Blackstone's Understanding of Sovereign Immunity for America's Public Institutions of Higher Education.

    Science.gov (United States)

    Snow, Brian A.; Thro, William E.

    2001-01-01

    Asserts that from the perspective of America's public institutions of higher education, Blackstone's greatest legacy is his understanding of sovereign immunity. Explores the similarities between Blackstone's understanding of sovereign immunity and the current jurisprudence of the U.S. Supreme Court. (EV)

  2. Remedial principles and meaningful engagement in education ...

    African Journals Online (AJOL)

    This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies ...

  3. African Journals Online (AJOL)

    African Journals Online (AJOL)

    Southern African Business Review; Effect of Globalization on Sovereignty of States Nnamdi Azikiwe University Journal of International Law and Jurisprudence; The Influence of Motivation on Employees' Performance: A Study of Some Selected Firms in Anambra State AFRREV IJAH: An International Journal of Arts and ...

  4. “A system of justice that closes the door to those who cannot pay is ...

    African Journals Online (AJOL)

    UKZN

    before the law, such as in civil cases where cost rather than justice often ... as well as the position in selected foreign jurisdictions regarding the offering ... civil disputes. ... cites the jurisprudence of the European Court of Human Rights which ...... attorneys a tax incentive by deducting every hour that is spent on pro bono work.

  5. fundamental objectives and directives principles of state policy

    African Journals Online (AJOL)

    Mofasony

    and Directive Principles of State policy in the Constitution of the Federal ... The Social Contract theory of the school of jurisprudence opines that the ... privatization process contrary to law and public concerns as expressed by local ... among Nigerians of different ethnic, linguistic, religions or other background and the.

  6. The Moral and Ethical Implications of Precision-Guided Munitions

    Science.gov (United States)

    2007-03-01

    state was secured permanently on the world political stage. Grotius was to jurisprudence and the just-war tradition as Francis Bacon and Rene ... Descartes were to philosophy and Galileo Galilei and Sir Isaac Newton were to applied science. Grotius’ interpretation of the just-war tra- dition as it

  7. The Human Right of Home Education

    Science.gov (United States)

    Donnelly, Michael P.

    2016-01-01

    Homeschooling is legal and growing in many countries but is virtually forbidden by law in Germany and a few others. The European Court of Human Rights (ECtHR) has reviewed and upheld this ban. Is home education a human right? How do these courts employ their jurisprudence of proportionality to find banning home education does not violate relevant…

  8. The Search for Accountability and Transparency in Plan Colombia: Reforming Judicial Institutions - Again

    Science.gov (United States)

    2001-05-01

    goes against the Latin mentality of machismo and infallibility,28 and therein lies the resistance to transparency and accountability. The...See Garcia, note 26, at p. 1287. 28. See Martha I. Morgan, “Taking Machismo to Court: The Gender Jurisprudence of the Colombian Constitutional Court

  9. Justifying genetics as a possible legal defence to criminal ...

    African Journals Online (AJOL)

    However, jurisprudence of many criminal cases tends to question whether a person's inherited genes predispose him to violence and further determine his criminal responsibility in law. Under the Nigerian criminal law, the legal test of criminal responsibility is mainly whether the accused person intends the consequence of ...

  10. From "Amistad" to "Brown": The March for Justice in the Courts.

    Science.gov (United States)

    Wilson, Margaret Bush; Gatewood, Diane Ridley

    1999-01-01

    Analyzes four significant court cases that span the rise of a body of jurisprudence in the United States known as civil rights law. Describes each of these cases in detail showing the profound impact they have had on the rights of all citizens and, in particular, African Americans. (CMK)

  11. Cohen and Kuttel

    African Journals Online (AJOL)

    kirstam

    aspects of modern tax systems. For an individual taxpayer who migrates, a common trend in the modern world, the questions are where the person is ordinarily resident and whether the place of ordinary residence can change. The two key cases in South African jurisprudence that are cited whenever the question of ...

  12. A critical Analysis of Bidding Exemption and Unenforceability – In Search of a Theory that Allows the Application in Specific Cases

    Directory of Open Access Journals (Sweden)

    Felipe Cesar Lapa Boselli

    2016-10-01

    Full Text Available The paper aims to conduct a review of the legislation, doctrine and jurisprudence about the possibilities of public hiring without bidding, working on a theory for division of existing institutes and applying this theory in the central hypothesis of the article that it would be illegal to emergency hiring continuous service through the bidding process.

  13. Page | 226 TAX OFFENCES: CLOGS IN THE WHEEL OF ...

    African Journals Online (AJOL)

    Fr. Ikenga

    The jurisprudence of this paper is on the examination of criminality in tax offences and the effects of ... Lecturer and Formerly, Coordinator, Department of Business Law, Faculty of Law, ..... for about 80 percent of government revenue in the past has also drastically decrees .... The FIRS made similar arrests earlier in the year.

  14. Legal response to human rights challenges of multinational ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... Hence, the subject matter of business and human rights is a trending issue at the ... The paper finds that the response is poor and the consequence is the increase in ...

  15. Development, concept and scope of copyright protection in Nigeria ...

    African Journals Online (AJOL)

    Development, concept and scope of copyright protection in Nigeria: an overview. ... Nnamdi Azikiwe University Journal of International Law and Jurisprudence ... This forms the aim of this paper which focuses essentially on basic issues relating to the development, concept and the scope of protection afforded copyright in ...

  16. The scope and applicability of Most-Favoured-Nation (MFN) clause ...

    African Journals Online (AJOL)

    ... 'treatment' in the jurisprudence of the International Centre for Settlement of Investment Disputes (ICSID) with a view of promoting a common vision about the scope and contours of the MFN clause contained in a number of bilateral investment treaties (BITs). Keywords: MFN, BIT, Most-Favoured Nation, investment treaties ...

  17. Cooperação jurídica internacional em matéria civil

    Directory of Open Access Journals (Sweden)

    Carmen Tiburcio

    2013-03-01

    Full Text Available O trabalho cuida dos sistemas e dos instrumentos de cooperação em matéria civil no âmbito do Mercosul: Protocolos de Las Leñas e Ouro Preto. Analisam-se os textos dos respectivos tratados, a jurisprudência brasileira e de outros países do Mercosul.

  18. 'Urf / 'Adah (Custom) : An Ancillary Mechanism in Shari'ah | Salisu ...

    African Journals Online (AJOL)

    According to the legal maxim in Islamic legislative system, custom ('Urf / 'Adah) is said to be authoritative (al-'adah Muhakkamah). Thus, right from the inception of Islam, it has been playing a decisive role in the dispensation of Shari'ah. Indeed, medieval and modern works in Islamic jurisprudence ('Usul al-Fiqh) are replete ...

  19. Nnamdi Azikiwe University Journal of International Law and ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence - Vol 9, No 2 (2018). Journal Home > Archives ... Attraction of business and restriction in legal practice in Nigeria and United States: need for globalization via legal education · EMAIL FREE FULL TEXT EMAIL FREE FULL TEXT · DOWNLOAD FULL ...

  20. Page | 246 CONCEPT OF CRIME IN THE ADMINISTRATION OF ...

    African Journals Online (AJOL)

    Fr. Ikenga

    view of the libertarians, also called the utilitarian view, dominated western jurisprudence while the positivist views pervade modern thinking in both the domestic and international arena. It was finally discovered that the uniqueness of the different views is that crimes must attract punishment for its breach. It is submitted that ...

  1. Implementation of treaty as basis for regional cooperation vis-à-vis ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 1 (2017) >. Log in or Register to get access to full text downloads.

  2. Following legal rules : Visibility and feasibility

    NARCIS (Netherlands)

    van Roermund, G.C.G.J.

    2014-01-01

    This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of

  3. Situating Urgenda v the Netherlands within comparative climate change litigation

    NARCIS (Netherlands)

    Roy, Suryapratim; Woerdman, Edwin

    2016-01-01

    This article situates the judgement of The Hague District Court in Urgenda Foundation v the Kingdom of the Netherlands within the life of global climate change litigation. To do so, the paper concentrates on the legal particulars of Dutch law, elements of ‘diffused’ jurisprudence from other

  4. Re-reading Vitoria: re-conceptualising the responsibility of rebel movements

    NARCIS (Netherlands)

    Greenman, K.

    2015-01-01

    This article begins with an analysis of the concept of responsibility elaborated in the jurisprudence of Francisco de Vitoria. It is argued that Vitoria’s concept of responsibility plays a central role in his construction of an international legal framework for the management of the Indians by the

  5. The legal nature of administrative detention

    Directory of Open Access Journals (Sweden)

    Adrian ALDEA

    2012-01-01

    Full Text Available Administrative or constabulary detention is the first measure involving deprivation of liberty that the police officers applies in extenso when initiating criminal investigations. Following the amendment of the jurisprudence of the European Court of Human Rights a more rigorous regulation of the circumstances and situations in which such a measure becomes effective is required

  6. African Journals Online (AJOL)

    African Journals Online (AJOL)

    Ethiopian Journal of Education and Sciences; Educational leadership and management: theory, policy and practice. South African Journal of Education; An approach to the neck mass. Continuing Medical Education; Crime and Punishment in Igbo Customary Law: The Challenge of Nigerian Criminal Jurisprudence OGIRISI: ...

  7. The European Convention on Human Rights & Parental Rights in Relation to Denominational Schooling

    NARCIS (Netherlands)

    J.D. Temperman (Jeroen)

    2017-01-01

    textabstractWhereas the bulk of religious education cases concerns aspects of the public school framework and curriculum, this article explores Convention rights in the realm of denominational schooling. It is outlined that the jurisprudence of the Strasbourg Court generally strongly supports the

  8. Parental Rights in Relation to Denominational Schooling under the European Convention on Human Rights

    NARCIS (Netherlands)

    J.D. Temperman (Jeroen)

    2017-01-01

    textabstractWhereas the bulk of Article 2 Protocol I cases concerns aspects of the public-school framework and curriculum, this article explores Convention rights in the realm of denominational schooling. It is outlined that the jurisprudence of the Strasbourg Court generally strongly supports the

  9. Religion and Education: A Human Rights Dilemma Illustrated by the Recent "Headscarf Cases"

    Science.gov (United States)

    Smith, Rhona K. M.

    2007-01-01

    Education and religion are indelibly linked: cultural precepts underpin education policies within the formal State education system, while education has a clear role to play in promoting tolerance. Clashes between religious beliefs and secular education pose problems for states as the current array of jurisprudence, particularly on Islamic dress…

  10. ISSN 1727-3781

    African Journals Online (AJOL)

    Brimer

    the context of which is a large body of jurisprudence, standard philosophy ... tension, slip, slide, perish,/Decay with imprecision, will not stay in place,/Will not stay ... fond of the dead language, Latin) and is very obviously still with us today, as is.

  11. Keena v Ireland and the Protection of Journalistic Sources

    NARCIS (Netherlands)

    Ó Fathaigh, R.

    2016-01-01

    In two decades of jurisprudence since Goodwin v UK on the protection of journalistic sources, the European Court of Human Rights has usually been called upon to consider two issues, namely: court orders compelling journalists to reveal a source or a source’s document; or police seizure of

  12. : tous les projets | Page 454 | CRDI - Centre de recherches pour le ...

    International Development Research Centre (IDRC) Digital Library (Canada)

    Sujet: LAW, LAWYERS, JURISPRUDENCE, JUDGES, ELECTRONIC PUBLISHING, EVALUATION TECHNIQUES. Région: North of Sahara, South of Sahara, Niger, Senegal, Burkina Faso. Financement total : CA$ 304,983.00. Évaluation de l'incidence du libre accès au droit sur la compétence des avocats. Projet.

  13. Good faith limitations on protected investments and corporate structuring

    NARCIS (Netherlands)

    Schill, S.W.; Bray, H.L.; Mitchell, A.D.; Sornarajah, M.; Voon, T.

    2015-01-01

    On numerous occasions, investment treaty tribunals have relied—and in some cases refused to rely—on the principle of good faith to ensure that only bona fide investments and investors are protected under the relevant investment treaty. This chapter reviews the jurisprudence on illegal investments

  14. Whistle blowing policy and the fight against corruption in Nigeria ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 2 (2017) >. Log in or Register to get access to full text downloads.

  15. Nnamdi Azikiwe University Journal of International Law and ...

    African Journals Online (AJOL)

    Principal Contact. Dr. Ikenga K.E. Oraegbunam Editor-in-chief. Nnamdi Azikiwe University. Department of International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, P.M.B. 5025, Awka, Anambra State, Nigeria. Alternate E-Mail: ikengaken@gmail.com. Phone: +2348034711211

  16. Critical examination of the quorum of code of conduct tribunal | Agbo ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 9, No 2 (2018) >. Log in or Register to get access to full text downloads.

  17. The European Court of Human Rights: achievements and challenges

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 1 (2017) >. Log in or Register to get access to full text downloads.

  18. Globalization: economic development and human rights crossroad ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 1 (2017) >. Log in or Register to get access to full text downloads.

  19. Implementation of treaties in Nigeria: issues, challenges and the ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 9, No 2 (2018) >. Log in or Register to get access to full text downloads.

  20. Roadmap to sustainable sovereignty: limitation of human occupiers ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 1 (2017) >. Log in or Register to get access to full text downloads.

  1. Transitional justice: reconciling domestic amnesty with the universal ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 1 (2017) >. Log in or Register to get access to full text downloads.

  2. Can a state house of assembly enact pension law in Nigeria ...

    African Journals Online (AJOL)

    Nnamdi Azikiwe University Journal of International Law and Jurisprudence. Journal Home · ABOUT THIS JOURNAL · Advanced Search · Current Issue · Archives · Journal Home > Vol 8, No 2 (2017) >. Log in or Register to get access to full text downloads.

  3. THE RELEVANCE OF SOCIO-LEGAL STUDIES IN LEGAL SCIENCE

    Directory of Open Access Journals (Sweden)

    Victor Imanuel W. Nalle

    2015-02-01

    Full Text Available Some law schools in Indonesia reject socio-legal studies with epistemological arguments that puts jurisprudence as sui generis. Rejection is based argument that jurisprudence is a normative science. In fact socio-legal studies in the development of jurisprudence outside Indonesia has long existed and contributed to the legal reform. Socio-legal studies also significant for legal reform. It is caused by the existence of non doctrinal aspect in law making and implementation of the law. Therefore the position and relevance of socio-legal research is not related to the benefits that provided for the development of national law or jurisprudence. Beberapa fakultas hukum di Indonesia menolak penelitian sosio-legal dengan argumentasi epistemologis yang menempatkan ilmu hukum sebagai sui generis. Penolakan tersebut didasarkan argumentasi bahwa ilmu hukum adalah ilmu yang bersifat normatif. Kenyataannya studi sosio-legal dalam perkembangan ilmu hukum di luar Indonesia telah lama eksis dan berperan dalam pembaharuan hukum. Selain itu, studi sosiolegal juga berperan dalam pembaharuan hukum. Hal ini disebabkan adanya aspek-aspek nondoktrinal yang berperan dalam pembentukan hukum dan implementasi hukum di masyarakat. Oleh karena itu kedudukan dan relevansi penelitian sosio-legal pada ada tidaknya manfaat yang diberikan bagi perkembangan hukum nasional ataupun ilmu hukum.

  4. THE RELEVANCE OF SOCIO-LEGAL STUDIES IN LEGAL SCIENCE

    Directory of Open Access Journals (Sweden)

    Victor Imanuel W. Nalle

    2015-02-01

    Full Text Available Some law schools in Indonesia reject socio-legal studies with epistemological arguments that puts jurisprudence as sui generis. Rejection is based argument that jurisprudence is a normative science. In fact socio-legal studies in the development of jurisprudence outside Indonesia has long existed and contributed to the legal reform. Socio-legal studies also significant for legal reform. It is caused by the existence of non doctrinal aspect in law making and implementation of the law. Therefore the position and relevance of socio-legal research is not related to the benefits that provided for the development of national law or jurisprudence.   Beberapa fakultas hukum di Indonesia menolak penelitian sosio-legal dengan argumentasi epistemologis yang menempatkan ilmu hukum sebagai sui generis. Penolakan tersebut didasarkan argumentasi bahwa ilmu hukum adalah ilmu yang bersifat normatif. Kenyataannya studi sosio-legal dalam perkembangan ilmu hukum di luar Indonesia telah lama eksis dan berperan dalam pembaharuan hukum. Selain itu, studi sosiolegal juga berperan dalam pembaharuan hukum. Hal ini disebabkan adanya aspek-aspek nondoktrinal yang berperan dalam pembentukan hukum dan implementasi hukum di masyarakat. Oleh karena itu kedudukan dan relevansi penelitian sosio-legal pada ada tidaknya manfaat yang diberikan bagi perkembangan hukum nasional ataupun ilmu hukum.

  5. Unpacking the public trust doctrine: a journey into foreign territory ...

    African Journals Online (AJOL)

    The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as ...

  6. Oposição à aquisição da nacionalidade: a inexistência de ligação efectiva à comunidade nacional

    OpenAIRE

    Costa, Paulo Manuel

    2012-01-01

    Neste artigo fazemos uma breve análise sobre a jurisprudência portuguesa em matéria de nacionalidade, em especial quanto à verificação da existência de uma ligação efectiva a comunidade nacional dos candidatos à aquisição da nacionalidade.

  7. Seeking Deliberation on the Unborn in International Law | de Freitas ...

    African Journals Online (AJOL)

    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 ...

  8. Sistem Pembiayaan Berdasarkan Prinsip Syariah (Suatu Tinjauan Yuridis Terhadap Praktek Pembiayaan di Perbankan Syariah di Indonesia)

    OpenAIRE

    Supriyadi, Ahmad

    2003-01-01

    This research aims at knowing sub system of law about the finance based on Syariah principle in Indonesia by method normative judicial approach not Islamic jurisprudence approach because the dispute finance have to solve by civil law of Indonesia. The research shows that finance based on Syariah principle have subsystems are profit sharing system, sale system and lease system.

  9. Sistem Pembiayaan Berdasarkan Prinsip Syariah (Suatu Tinjauan Yuridis Terhadap Praktek Pembiayaan di Perbankan Syariah di Indonesia)

    OpenAIRE

    Supriyadi, Ahmad

    2013-01-01

    This research aims at knowing sub system of law about the finance based on Syariah principle in Indonesia by method normative judicial approach not Islamic jurisprudence approach because the dispute finance have to solve by civil law of Indonesia. The research shows that finance based on Syariah principle have sub systems are profit sharing system, sale system and lease system.

  10. Terror, terrorizing, terrorism: instilling fear as a crime in the cases of Radovan Karadzic and Charles Taylor

    NARCIS (Netherlands)

    Glasius, M.; Zarkov, D.; Glasius, M.

    2014-01-01

    This chapter examines recent instances of the prosecution of the crime of ‘spreading terror’ or ‘acts of terrorism’ by international criminal courts and relates its introduction to changing legal and political understandings of the nature of war. It discusses emerging jurisprudence on ‘terror’ as a

  11. 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.

  12. Autonomous authority in relation to the staff regulations of autonomous parliaments

    Directory of Open Access Journals (Sweden)

    Rafael Cano Silva

    2018-04-01

    Full Text Available The statutes of Autonomous Parliaments are parliamentary administrative norms approved by each legislative chamber by virtue of their parliamentary autonomy. However, the parliamentary autonomy of each autonomous parliament does not have the same normative aspect for these purposes. It is studied in this article as despite having the Constitution as a common element, it is essential the special attribution that each autonomous chamber has and that the jurisprudence, both of the Constitutional Court, and that of the Supreme Court, has put in value, question that is included in the section related to the jurisprudence. In conclusion, the bureaucratic organization, in what refers to personal media, may be substantially different in each one of the legislative assemblies, as analyzed in the conclusions of this study.

  13. Synthesis - Renewable energies (January 2013 - January 2014)

    International Nuclear Information System (INIS)

    Deharbe, David; Gandet, Stephanie

    2014-01-01

    This article proposes a detailed overview of the evolution of the legal context of renewable energies. The author first addresses wind energy: official critics and new uncertainties, suppression of wind energy development areas, suppression of the 'five-mast rule', purchasing obligation in the energy code, the legal framework as an obstacle to wind energy development, issue of purchase tariff and State support, jurisprudence regarding urban planning, public inquiry, radars. He then addresses sun energy: issue of self-production, anti-dumping struggle by the European Commission, continuous decrease of purchase tariffs, taxing issues for solar stations, jurisprudence on compensations and location possibilities. The next topic is biogas: current status of biogas installations, new definition of biomass, financial guarantees. He also addresses the case of hydroelectricity (longer duration and renewal of hydroelectric concessions, estate rights) and that of geothermal energy (planned reform of the applicable law)

  14. Christian Thomasius, the rule of law, and the separation of Church and State

    Directory of Open Access Journals (Sweden)

    John Christian Laursen

    2018-06-01

    Full Text Available Christian Thomasius was above all a professor of jurisprudence who used his legal skills to resolve all sorts of legal, political, and moral problems. In this article we review two of his writings that contributed to his rearticulation of the relations between religion and politics in early modernity. He used the elements of what later became the concept of the rule of law to defend Denis Veiras, author of the Histoire des Sevarambes, against charges of atheism. He also defended the skeptical jurisprudence of Georg Heber as the best instrument for separating church and state and assigning each their proper roles, and made use of theological skepticism to justify excluding the theologians from politics and limit the interventions of princes into religious matters except in cases where the peace of the state was endangered.

  15. Procedure of preliminary decision as a supranational judicial keynote of the European Union member states

    Directory of Open Access Journals (Sweden)

    Delia Magherescu

    2017-10-01

    Full Text Available The procedure of preliminary decision has been for a long time agreed unanimously both by doctrine and jurisprudence and considered as a keynote in developing notional law systems of the European Communities. In the national frame, it is similarly with submitting unconstitutional exception, regulated in several national jurisdictions of the EU Member States. The current paper aims at providing some argues based on a jurisprudence frame of the procedure of preliminary decision made by the Court of Justice of the European Union, as being directory for the national EU Member States’ courts of justice. It also focuses on the judicial issues whose solution is needed in order for the national justice to solve the cases they were invested with.

  16. Classics in psychiatry and the law: Francis Wharton on involuntary confessions.

    Science.gov (United States)

    Weiss, Kenneth J

    2012-01-01

    Philadelphia attorney Francis Wharton was a key intellectual figure in linking the sciences of medicine and law. In 1860, he published a monograph on involuntary confessions, which represented the closing chapter of Wharton and Stillé's Treatise on Medical Jurisprudence. He had already published A Monograph on Mental Unsoundness in 1855, the first book of the Treatise in its first edition. Wharton was convinced that many criminals had an inner compulsion to confess or to be caught, explained as divine jurisprudence. His remarks on confessions include a typology spanning psychodynamics to police tactics, using contemporaneous, historical, and literary examples. This remarkable document provides insight into the dynamics of unintended and involuntary confessions and is compatible, in part, with current scholarship. The author contrasts Wharton's schema with those of his English predecessor Jeremy Bentham, the psychoanalyst Theodore Reik, and others, and concludes that it represents an important transition toward a psychological approach to the criminology of confessions.

  17. Limits of negligent responsibility for medical malpractice

    Directory of Open Access Journals (Sweden)

    Marin Mrčela

    2017-01-01

    Full Text Available Criminal offence of medical malpractice is one of core medical criminal offences. Protected object is health of patients. Application of inadequate methods in health treatment can have severe consequences for patient’s health, even death. Croatian jurisprudence is familiar with such cases. However, Croatian literature until now did not deal with this sensitive area of criminal law. Scope and limits of responsibility for negligent form of medical malpractice can cause doubts in court’s practice when deciding about criminal liability. This paper is dedicated to this topic. After presentation of main characteristics of this criminal offence, the authors are making an effort to establish criteria for estimation of negligence in case of medical malpractice. They are testing their thesis on one very complicated case from recent Croatian jurisprudence.

  18. Towards an Administrative Procedure of the European Union: Issues and Prospects

    Directory of Open Access Journals (Sweden)

    Mihaela V. Cărăuşan

    2016-12-01

    Full Text Available This article aims at identifying European administrative law principles by mapping the proposal of the European Parliament and assessing the existing principles in the European Union’s rules and jurisprudence. The first section analyses the difficulties to pass from the well-known sectoral procedures to a common procedural framework. It shows, on the one hand, how fragmented is the administrative EU law, and on the other hand, that European Commission tends to support it by derailing the Parliament’s proposal. The second section, is mapping the administrative law principles through an inventory of the Treaties, the Charter, the soft law and the jurisprudence. The last section proposes an assessment of the draft Regulation on the administrative procedure of European Union. The main outcome is that, without the Commission’s involvement the process of making a common administrative procedure for European Union cannot take place.

  19. CONSIDERATIONS ABOUT OVERLAPPING CRIMINAL AND ADMINISTRATIVE LIABILITY FOR THE SAME OFFENSE

    Directory of Open Access Journals (Sweden)

    MIRELA GORUNESCU

    2011-04-01

    Full Text Available The ne bis in idem principle is one of the fundamental principles of a criminal trial in a state of law. This paper focuses on the question whether a possible overlapping between criminal and administrative liability for the same offense is or not a violation of this principle. Both the national and the European Court of Human Rights jurisprudence were investigated. By reporting to the European case we concluded that such a situation represents a case of bis in idem.

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

    OpenAIRE

    Andrea Lollini

    2012-01-01

    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 constitution...

  1. Occupational hazards

    OpenAIRE

    Paz-Fuchs, Amir; Ronen, Yaël

    2012-01-01

    This article provides an analysis and a critique of the law governing the employment relationship between Israeli employers and Palestinian employees in industries operating in the West Bank. \\ud \\ud Through an analysis of Israeli jurisprudence it highlights the intersection among different areas of law: choice of law, public international law (in particular the law of occupation), and labor law. The article explores the tensions that this intersection creates: first, between the importance t...

  2. The Human Cloning Prohibition Act of 2001: vagueness and federalism.

    Science.gov (United States)

    Swartz, Jonathan S

    2002-01-01

    On July 31, 2001, the U.S. House of Representatives passed The Human Cloning Prohibition Act of 2001. The legislation proposes a complete ban on somatic cell nuclear transfer to create cloned human embryos; it threatens transgressors with criminal punishment and civil fines. House Bill 2505 is the first human cloning prohibition to pass either chamber of Congress. This note argues that the bill is unconstitutionally vague and inconsistent with the Supreme Court's recent Commerce Clause jurisprudence.

  3. Front-Stage Stars and Backstage Producers: The Role of Judges in Problem-Solving Courts1

    OpenAIRE

    Portillo, Shannon; Rudes, Danielle; Viglione, Jill; Nelson, Matthew; Taxman, Faye

    2013-01-01

    In problem-solving courts judges are no longer neutral arbitrators in adversarial justice processes. Instead, judges directly engage with court participants. The movement towards problem-solving court models emerges from a collaborative therapeutic jurisprudence framework. While most scholars argue judges are the central courtroom actors within problem-solving courts, we find judges are the stars front-stage, but play a more supporting role backstage. We use Goffman's front-stage-backstage fr...

  4. International Criminal Law & Its Paradoxes

    DEFF Research Database (Denmark)

    Carlson, Kerstin Bree

    2017-01-01

    criminal law are unrealizable under current ICT practice. This is due to international criminal law's foundational, legitimizing basis in natural law, rather than political liberalism. The article calls for a revision of ICT institutional accountability structures.......This article challenges international criminal tribunals' (ICTs) capacity to perform the socially constitutive work of transitional justice. Highlighting paradigmatic ICT jurisprudence, it shows both the "progress" and "justice" constructs central to the work and legitimacy of international...

  5. Planning damage by wind turbines? An analysis of the fear for devaluation

    International Nuclear Information System (INIS)

    Heijst, I.P.A.

    2005-11-01

    Owners of real estate often are afraid that the planning and installation of a wind turbine farm in the neighbourhood of their properties will result in a devaluation of their real estate. They often threaten municipal administrators with large claims for a possible devaluation. The question to be answered in this report is how big the chance is that those claims will be successful, based on related jurisprudence [nl

  6. Significance of technical rules for environmental pollution control

    International Nuclear Information System (INIS)

    Grefen, K.

    1989-01-01

    Technical rules for environmental pollution control are very important in times of intensified technical progress and especially in view of the alterations of the legislative basis of the European Market in 1992. In the fields of jurisprudence, science and technology they serve as a decision-making aid for authorities, specialists in plant development and operation and the preparatory stages of international legislation. The topic is explained by the development of guidelines with the VDI-Commission on Air Pollution Prevention. (orig.) [de

  7. Your Criminal Fico Score

    Science.gov (United States)

    2016-09-01

    Amendment jurisprudence . First, more information will be collected on individuals in police databases, and those individuals may not receive notice of...66 “Preconference Call for Papers: Algorithms, Automation and Politics” International Communication Association, accessed Aug. 2, 2016, http...moments. 82 Stephanie K. Pell, “Systematic Government Access to Private-Sector Data in the United States,” International Data Privacy Law 2 (2012): 245

  8. Reexamining Islam and Democracy Through the Wasatiyya Perspective

    Science.gov (United States)

    2014-12-01

    43 Marina Ottaway and Marwan Muasher, “Islamist Parties in Power: A Work in Progress,” Carnegie Endowment for International Peace, May 23, 2012...religions/muslims., and Todd M. Johnson and Brian J. Grim, ed., The World’s Religions in Figures: An Introduction to International Religious...also believe that the interpretations or understandings of man (i.e. Islamic jurisprudence (fiqh) and rulings of jurist/scholars (fatwa52)) are not

  9. Intelligence Preparation for Operational Resilience (IPOR)

    Science.gov (United States)

    2015-12-01

    unlimited distribution except as restricted below. Internal use:* Permission to reproduce this material and to prepare derivative works from this...material for internal use is granted, provided the copyright and “No Warranty” statements are included with all reproductions and de- rivative works...legal coun- sel regarding the latest state of jurisprudence . 2.1.3 Determine the Technological Environment Changes in the technical landscape can also

  10. U.S. Military Action Against the Islamic State: Answers to Frequently Asked Legal Questions

    Science.gov (United States)

    2014-09-09

    and exclusive power of the President as the sole organ of the federal government in the field of international relations”). U.S. Military Action...with relevant statutory authority,26 there has been little jurisprudence concerning the scope of presidential authority to order the use of force...29 Dames & Moore, 453 U.S. 678-679 ( internal citations omitted). 30 Medellin v. Texas, 552 U.S. 491, 531-532 (2008) ( internal citations omitted

  11. Iran’s Role in Iraq: Room for U.S.-Iran Cooperation?

    Science.gov (United States)

    2015-01-01

    international isolation, but could also increase its leverage on nuclear negotiations with the P5+1 (China, France, Germany, Rus- sia, the United Kingdom, and...Iranian- born Grand Ayatollah Ali Sistani, are wary of Iran’s velayat-e faghih (rule of the supreme jurisprudence ). Moreover, many Iraqis, including...foreign policy objectives, from decreasing Tehran’s international isolation to possibly gaining more leverage on nuclear negotiation. Therefore, it is

  12. Combat Stories: Creating a Web-Based Geospatial Interface to Record Combat Stories for Validation and Other Research Purposes

    Science.gov (United States)

    2015-06-01

    On the Implications of Lessons Learned Use for Lessons Learned Content,” Proceedings of the 13th International Conference on Knowledge Management and...in Islamic jurisprudence , Sheikh Abdallah Azzam taught at the University of Amman, Jordan from 1973–1980...Show Beheading of American Civilian,” New York Times, May 11, 2004, http://www.nytimes.com/2004/05/11/ international /middleeast/11CND-BEHE.html. 82

  13. 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...

  14. Hostile Environment? The Development of Sexual Harassment Law in the United States 1971-1991

    OpenAIRE

    Coukos, Pamela

    2011-01-01

    AbstractHostile Environment?The Development of Sexual Harassment Law in the United States 1971 - 1991by Pamela CoukosDoctor of Philosophy in Jurisprudence and Social PolicyUniversity of California, BerkeleyProfessor Lauren B. Edelman, ChairHow did the sexual harassment litigation campaign succeed in defining a new antidiscrimination principle in the midst of the Reagan-era backlash against civil rights? In 1986, the U.S. Supreme Court definitively established sexual harassment as a violation...

  15. Contemporary problems with the GATS and internet gambling

    OpenAIRE

    Turksen, U.; Holder, R.

    2015-01-01

    This article focuses on the issue of enforcement of the WTO rules on international cross-border trade in services. It is argued that the examination of the GATS jurisprudence and state practice reveal that the GATS does not address the needs of the developing countries in general and the prospects of internet gambling services in the Caribbean Community in particular. First, the article discusses the extent of service-producing activities within the GATS provisions and outlines the main princ...

  16. Islam, Etika Hukum Dan Legal Culture

    OpenAIRE

    Yusdani, Author:

    2005-01-01

    The main problem of Indonesia as a nation is a multidimensional crisis. This problem emerges because of misleading management of this state. The misleading manage ment drives many cases, for instance corruption culture. The corruption denotes main problem in this nation building. Meanwhile when Indonesia towards reformation era since 1996, paying attention to law action and law enforcement is more than that ofjurisprudence. Instead, it is still rarely the investigation of jurisprudence regard...

  17. Islam, Etika Hukum dan Legal Culture

    OpenAIRE

    Yusdani, Author:

    2010-01-01

    The main problem of Indonesia as a nation is a multidimensional crisis. This problem emerges because of misleading management of this state. The misleading manage ment drives many cases, for instance corruption culture. The corruption denotes main problem in this nation building. Meanwhile when Indonesia towards reformation era since 1996, paying attention to law action and law enforcement is more than that ofjurisprudence. Instead, it is still rarely the investigation of jurisprudence regard...

  18. The Evolution of Human Rights Protection within the EU Legal System

    OpenAIRE

    Tăbușcă Silvia

    2012-01-01

    Having in mind the EU’s policy to rebuild the democratic systems within the former Europeancommunist countries and its involvement in international actions regarding human rights enforcement, thereis no doubt about the importance of individuals rights protection in the European Union’s legal system. In thisrespect, the present paper analyzes the evolution of the principle of EU’s human rights protection. Theresearch done on the EU legislation and courts’ jurisprudence shows that there are thr...

  19. I DELITTI COLPOSI DI LESIONI PERSONALI E OMICIDIO DA INSIDIA STRADALE

    OpenAIRE

    Ghezzo, Donatello

    2013-01-01

    This thesis deals with the injuries, or even the death, of public places' users caused by the public place itself, concerned from a criminal point of view. The majority of jurisprudence has deeply discussed punitive damages caused by bad manteinance of the roads, whereas few judgements regarded the possible criminal consequences. This work aims to focus on the criminal liability descendant from these cases, first of all by frame them into the reati omissivi impropri system, and also by ...

  20. Veřejné zakázky mezi subjekty ve veřejném sektoru (in-house zadávání veřejných zakázek v judikatuře ESD)

    OpenAIRE

    Uruba, David

    2016-01-01

    The aim of this study is to provide a comprehensive analysis of the applicability of the exceptions of vertical (in-house) and horizontal cooperation among contracting authorities within the framework of public procurement law. For this purpose is in the thesis used descriptively analytic approach, which included the valid legislation of public procurement Czech Republic, as well as the relevant directives of European Union, although the focus of the thesis was based on the jurisprudence of t...

  1. Perception de la notion de litige sportif par les acteurs du mouvement sportif camerounais : entre et lueurs et leurres

    Directory of Open Access Journals (Sweden)

    Romuald Dey Yelem Franck

    2016-01-01

    L'intérêt de cette communication sera de donner le contenu des notions de litige sportif et contentieux électoral et les différentes positions en présence et voir comment les acteurs du mouvement sportif en ont fait une appréhension erronée. Il va aussi permettre à travers la jurisprudence qui est source de droit de trancher définitivement cette équivoque.

  2. Métodos de avaliação de empresas e o balanço de determinação.

    Directory of Open Access Journals (Sweden)

    Marcelo Monteiro Perez

    2008-05-01

    emphasis on discounted cash flow analysis, a widespread practice in the corporate world. The approach known as Special Balance Sheet Analysis is then presented and critically analyzed according to financial theories. In accordance with jurisprudence, this has been adopted by Brazilian magistrates as a method of analyzing and valuing companies and their assets in split-ups and partial dissolution of private limited companies and closed joint-stock companies. Keywords: Valuation, cash flow, special balance sheet analysis.

  3. Dignity and the death penalty in the United States Supreme Court

    OpenAIRE

    Malkani, Bharat

    2016-01-01

    The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This...

  4. Tiesioginės diskriminacijos samprata pagal rasių lygybės, užimtumo lygybės ir lyčių lygybės direktyvas

    OpenAIRE

    Gumbrevičiūtė-Kuzminskienė, Diana

    2010-01-01

    Gender discrimination case law of European Court of Justice established fundamental principles and influenced both the jurisprudence and case law of the examining discrimination cases on gender and other discrimination grounds. In the paper, the concept of direct discrimination formulated in the Race and Occupation equality directives applied under them, later taken by other directives and national law, is analyzed. Lithuania, the same as the other Member States, defined the direct discrimina...

  5. Sexualita z pohledu islámu

    OpenAIRE

    Zdeněk, Michal

    2012-01-01

    This thesis discusses the relation between the Islamic tradition and sexuality, while focusing on sources of the Sunni Islam. It quotes from the Qur'an, hadiths, classical works of the Islamic jurisprudence and various fatwas. It deals with sexual aspects of the marital relationship, including the polygyny, with partners' rights and duties in the intime life and also with limitations given for choosing a partner. It also deals with allowed sexual relationship with slave-girl and forbidden sex...

  6. Offshore wind energy: the Nantes administrative court gives its first decisions

    International Nuclear Information System (INIS)

    Deharbe, David; Deldique, Lou

    2017-01-01

    In May 2017, the Nantes administrative court gave a restrictive appraisal to the acting interest of associations and cities contesting the installation and exploitation approval of a wind farm off Saint Nazaire coast and rejected the different arguments put forward by the opponents of the project. This decision suggests a probably favorable jurisprudence for the forthcoming offshore wind farm projects. This paper presents the explanatory statement and comments the conclusions of the judgement

  7. Concept of accident and injury of air passengers

    Directory of Open Access Journals (Sweden)

    Đurđev Dušanka

    2014-01-01

    Full Text Available Despite the efforts from the international community to create an unified liability regime in Private International Air Law, there are still significant hurdles to be overcome. Many essential rules from this legal regime are vague and open to interpretation. The role of judges is crucial in order to give them their intended meaning. Thus, this paper examines jurisprudence concerning carrier liability in case of death or injury of passengers.

  8. Konstitucinės justicijos proceso teisės klausimu

    OpenAIRE

    Kūris, Egidijus

    2011-01-01

    The advento of constitutional review and the growth of constitutional jurisprudence in Lithuania stimulated the transformation of the paradigm of constitutional law. One of the essential features of the “new” paradigm is the clear delineation between constitutional and ordinary (sub-constitutional) law. At the same time, there is an undergoing formation of preconditions for distinguishing the norms and other provisions regulating the process of judicial constitutional review of legal acts as ...

  9. NAQLI KNOWLEDGE COURSE-BASED: AN OVERVIEW OF STUDENTS’ PERCEPTION

    OpenAIRE

    Abdul Aziz, Azniwati; Ibrahim, Mohamed Akhiruddin; Wan Ishak, Wan Amir Nudin; Shariff, Sanusi; Hasbullah, Rasmina; Subri, Irwan Mohd

    2017-01-01

    This research analyses Al-MabadikAl-Fiqhiyyah (Principles of Islamic Jurisprudence) as one of a compulsorycourse that should be taken by the students from Tamhidi of Shariah and Lawstudents in Universiti Sains Islam Malaysia (USIM). Thus, this research aims todiscover students’ perception regarding this course, including the level ofdifficulty of the content. Besides, this research also aims to study on how farthis subject benefit the students especially when it comes to contemporaryissues in...

  10. Beyond Invention: Patent as Knowledge Law

    OpenAIRE

    Madison, Michael

    2017-01-01

    The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between...

  11. Sufism in Northern Nigeria: Force for Counter-Radicalization?

    Science.gov (United States)

    2010-05-01

    the promi- nent writer, jurisprudent, and preacher, Sheikh Abu - bakar Gummi. Born in the early 1920s, he first made a name for himself as a critic of...contemporary, religious and political. For al- though the Caliphate is now not what it used to be, it still has substance and its leaders, the Sultan ...priest—was the Sultan . Based in Sokoto, he claimed descent from the Prophet Muhammad, an assertion that, rhetorically at least, made both him and

  12. 「国際取引学」の可能性について―法・商・経営諸学の共有分野の一体的把握の必要性―

    OpenAIRE

    絹巻, 康史; Yasushi, Kinumaki

    1997-01-01

    This paper is to verify a possibility of "International Tradology, or International Transactionics (as a tentative name)", as a new concept. It is integration of specific knowledge at a common sphere that is related with jurisprudence, commercial science and business science in the international business field. The main target of this new concept is the international business activities, which consisit of foreign trade that is typical of export and import, and business management for an Inter...

  13. Intelligence Leaks: What Is the Role of the Leak and the Leaker in U.S. Democracy?

    Science.gov (United States)

    2014-03-01

    WikiLeaks, the government did not fight a battle against the media due, in part, to the jurisprudence established by the Pentagon Papers . (The U.S...Accountability.” University of Georgia, School of Public and International Affairs, Occasional Paper . Johnson, Lyndon B. “Special Message to the Congress on...between the Pentagon Papers and WikiLeaks to Edward Snowden. 14. SUBJECT TERMS Bradley Manning, Daniel Ellsberg, executive

  14. The influence of parenting on maladaptive cognitive schema: a cross-sectional research on a group of adults

    OpenAIRE

    Pellerone,Monica; Iacolino,Calogero; Mannino,Giuseppe; Formica,Ivan; Zabbara,Simona

    2017-01-01

    Monica Pellerone,1 Calogero Iacolino,1 Giuseppe Mannino,2 Ivan Formica,3 Simona Maria Zabbara1 1Faculty of Human and Social Sciences, “Kore” University of Enna, Enna, Sicily, Italy; 2Department of Jurisprudence, “LUMSA” University, Rome, Italy; 3Department of Cognitive, Psychological, Pedagogical Sciences and Cultural Studies, University of Study of Messina, Messina, Sicily, Italy Background: The literature emphasizes the role of early interpersonal exp...

  15. Criminal Homicide Because of Blood Feud

    OpenAIRE

    Leyla Cak›c› Gercek; Jale Bafra

    2005-01-01

    Although so much progress going on in every field, the crimes of killing man impelled by blood feud carry on their existance. All jurisprudences and the decisions of the Court of Appeal about the criminal homicides connected with this type of crimes ha- ve been carefully examined. The required measures to prevent that, the criticisms againist the decisions of the Court of Appeal and the factors explained in the decisions of that Co- urt have been determined.

  16. How to do Things with Screens? Anti-Pornography Feminism and Censorship

    OpenAIRE

    Ramond, Denis

    2013-01-01

    Is it possible to condemn certain forms of expression without being seen as a moralist? In order to get around the emphasis that American jurisprudence places on freedom of speech, some antipornography feminists have used the theory of speech acts to demonstrate the wrongs that pornographic representations can inflict on women. If pornography has the power to silence women by its mere existence, then it is possible to fight against it for the sake of freedom of expression. This article aims t...

  17. Svoboda projevu v ČR

    OpenAIRE

    Krump, Václav

    2014-01-01

    Freedom of speech in the Czech Republic This thesis deals with the freedom of speech in the Czech Republic especially with its limits and jurisprudence related to this key political right. It is composed of five chapters. The first chapter is The Introduction. It highlights the importance and necessity of the freedom of speech for an individual and the society. It also describes the main purpose of this work. The second chapter briefly summarizes the history and evolution of the freedom of sp...

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

    OpenAIRE

    Peyman Mohammadi; Saeed Kheradmandi

    2014-01-01

    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 c...

  19. Risk-oriented banking supervision: understanding change of course

    Directory of Open Access Journals (Sweden)

    Vlasov K. A.

    2017-11-01

    Full Text Available in this article the existing model of national bank supervision, its substantial party are considered. By means of the legal analysis and comparative jurisprudence foreign models of bank supervision, the international standards of the «soft» right are investigated, the analysis of an opportunity and positive sides of change of approach of the operating bank supervision to substantial (risk-focused is made.

  20. MENGGUGAT RELASI FILSAFAT POSITIVISME DENGAN AJARAN HUKUM DOKTRINAL

    OpenAIRE

    FXAdji Samekto

    2012-01-01

    In the teaching of law, there is often "mistaken", that puts legal positivism (jurisprudence)  is identical with the philosophy of positivism. Legal positivism be identified as an instance of positivism philosophy intact. The study of legal positivism, in fact very closely related to the philosophy and teachings of the law from time to time. The effects of natural law in the scholastic era, then the era of rationalism and the influence of positivism in the philosophy of natural science is ver...

  1. The Vulnerable Subject of Negligence Law

    OpenAIRE

    Stychin, C.

    2012-01-01

    The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law...

  2. Autonomía universitaria y derecho a la educación: Alcances y límites en los procesos disciplinarios de las instituciones de educación superior

    OpenAIRE

    Renata Amaya; Ana María Otero; Margarita Gómez

    2007-01-01

    This article explores the scope of both the right to education and university autonomy in order to asses how these rights may limit each other in the disciplinary procedures of institutions of higher education. Additionally, it analyzes the tensions that can arise between the right to education, university autonomy and due process within disciplinary environments, as well as examines what tools recent constitutional jurisprudence offers to resolve such conflicts. Lastly, the article reflects ...

  3. ESTATUTO DE AUTONOMÍA DE CATALUÑA, GOBIERNOS LOCALES Y TRIBUNAL CONSTITUCIONAL

    Directory of Open Access Journals (Sweden)

    Ricard Gracia Retortillo

    2011-03-01

    Full Text Available This article analyses the impact of Ruling 31/2010 of 28 June by the Constitutional Court on the regulation of the Statute of Autonomy of Catalonia on the subject of local governance. Specifically, it is focussed on the two most important questions: the conferring of powers to the Generalitat in the local sphere and the statutory regulation of the historical administrative demarcations (veguerías. In relation to the first of these questions, there is an exhaustive analysis of the state of jurisprudence of the constitutional Court on this matter, in order to later consider the content of the statutory regulations and the Ruling itself. From this, it concludes that in general terms the Court has not changed the basic lines of its jurisprudence, thus frustrating the attempt to increase the weight of autonomous powers set out by the statutory legislator. With respect to the veguerías, the analysis centres on the relation of the State to the constitutional guarantee of the province. The starting point for the interpretation by the Constitutional Court is also the maintenance of its traditional jurisprudence, preventing any attempt of substitution of the province, although it does leave the specific determination of the nature of the veguería in the hands of the Catalan legislator. In this sense, there is particular interest in the study of the recentLaw of veguerias, which according to the text, sets out from the identification of the difference between vegueria and province.

  4. Al-‘Alāqah baina Ushūl al-Fiqh wa Maqāshidi al-Sharīah wa al-Da’wah ilā Ta’sīsi ‘Ilmi al-Maqāshid

    Directory of Open Access Journals (Sweden)

    Anggraini Binti Ramli

    2016-12-01

    Full Text Available The study of Maqāshid sharīa is an important point in the discussion of Islamic legal theory (ushūl al-fiqh. Serious debates began to emerge in the 19th century among Islamic jurists concerning the position of maqāshid sharīa. At least, there are three important debates in the history; first, whether maqāshid is part of the discussion ushūl al-fiqh; second, is maqāshid sharīa built upon a foundation of classical Islamic jurisprudence (fiqh; and third, whether the maqāshid sharīa study is able to become an independent science that is separated from the study of classical Islamic jurisprudence. This article tries to present a discussion of the three paradigms by employing a descriptive-analytic method. The results of this study uncover that the study of maqāshid sharīa is like two sides of one coin; theoretically it is a distinctive study from ushūl al-fiqh, but it cannot be separated from one another. Ushūl al-fiqh has become the foundation to find out more details about the study of maqashid sharia. The separation between classical Islamic jurisprudence (fiqh and maqāshid sharīa study conducted by Islamic jurists is a relative separation.

  5. MENGKRITISI MAKNA HUKUM RIBA BUNGA BANK

    Directory of Open Access Journals (Sweden)

    Agus Sarono

    2015-09-01

    Full Text Available Bank interest is considered usury. One is to be scrutinized if the bank interest as usury, because usury is often mentioned in the texts is characterized oppress and torment the community. As with the conventional bank interest, how many small and medium enterprises which helped because Free Master in conventional banks. Problems found in the writing of this paper is; Why people ignore the MUI fatwa on usury interest as knife analysis; Unger critical legal theory, theory of responsiveness Nonet Sezlnick, the theory of legal culture Lawrence M Friedman progressive Satjipto Rahardjo and Usul Fiqh used to find alternative meanings of texts relating to usury From search and review of the problems concluded that after the birth of four Imam Muslim schools stuck in the mindset of the four Imams Madzhab and afraid to ijtihad. Therefore, the Muslims thought of usury is not far from what has been inferred by the four Imam mazdhab. Finally Islamic law really can not answer the development of society. Bank interest is equated with usury which both born differ in the time span, the different communities of the background, a different effect. Therefore interest rates clearly differ from usury and should not be equated with riba. That is why people ignore the MUI fatwa in business transactions. Should the scholars 'move from positivistic Jurisprudence to understanding Sociological Jurisprudence positivistic Jurisprudence.Oleh Hence the scholars can use the legal pluralisme approach in defining legal meaning.

  6. Etiese grondslae van die grondwetlike reg – ’n Reformatoriese perspektief

    Directory of Open Access Journals (Sweden)

    N. Vorster

    2003-08-01

    Full Text Available Ethical foundations of constitutional jurisprudence – a Reformational perspective South African constitutional jurisprudence is delivered on a value-driven basis. The implication of this approach is that the Constitution is interpreted by courts in terms of the fundamental values of the Constitution of 1996, that is, human dignity, equality and freedom. The value-driven basis of constitutional jurisprudence was emphasised by the Constitutional Court in State v Makwanyane. Abstract ideals, however, always suppose certain ethical presuppositions. It is therefore important that a common framework of values should be created to help courts interpret the Constitution. The aim of this article is to focus on the ethical content that the Constitutional Court currently gives to the fundamental values of the Constitution, and to provide a brief Reformational perspective on the values of dignity, equality and freedom. The central theoretical argument of this article is that courts found rights, in accordance with constitutionalism which is a product of the Enlightenment, anthropocentrically in the inherent qualities that man possesses. The Reformational tradition, in contrast, founds the rights of man theocentrically in man’s relation with God.

  7. HOMOSEKSUALITAS DALAM PANDANGAN PEMIKIR BARAT DAN FUKAHA

    Directory of Open Access Journals (Sweden)

    Salma

    2008-12-01

    Full Text Available Homosexuality in the Perspective of Western Thinkers and Islamic Jurisprudents. It is widely accepted that homosexuality is a damaging and immoral way of life. This presupposition seems to become as a uniting factor between the thoughts of Western scholars and Islamic jurisprudents on the legal position of homosexuality. The author argues that although Islam respect freedom in all aspects of life which belongs to every single individual, however, freedom is always recompensed with contractual responsibility to control its proper use and misuse. Accordingly, in the reality of Western world not all of the society is in agreement with substantial use of freedom occurs around them. Freedom demanded by homosexuality and social reality has led to serious concern amongst the society about their future generation. In such a condition their human nature points to the necessity for religious and spiritual life. The author argues that they trust religion to be capable of anticipating themselves as well as their family from negative effect of homosexuality. This essay analyzes the root of homosexuality in the view of both Western scholars and Islamic jurisprudents, and relates their implication to the importance of religion.

  8. Swedish legal scholarship concerning protection of vulnerable groups: Therapeutic and proactive dimensions.

    Science.gov (United States)

    Dahlin, Moa Kindström; Leviner, Pernilla; Kaldal, Anna; Gumpert, Clara Hellner

    2010-01-01

    This paper presents a brief overview of the legal theoretical problems that arise in connection with the societal ambition of protecting vulnerable groups. One of the central difficulties in legislation with proactive and therapeutic ambitions arises from the link between law and philosophy of science, i.e., the relationship between facts and norms. It is shown that Therapeutic Jurisprudence differs in several aspects from Swedish legal scholarship that follows Scandinavian Legal Realism. It is also demonstrated that Therapeutic Jurisprudence has several similarities with the so-called Proactive Approach. This paper suggests that Therapeutic Jurisprudence may serve as a useful legal theoretical perspective in Swedish legal scholarship, especially when studying complex and vague regulations with a future focus. Two examples from Swedish legislation are examined: (a) Laws regulating compulsory care of abused or neglected children, and (b) laws related to the mentally ill. This paper illustrates the complexity in these acts, and poses the question of whether the regulations serve their purpose of providing adequate care for and protection of those in need. Copyright © 2010 Elsevier Ltd. All rights reserved.

  9. PHILOSOPHICAL VALIDITY, THEORETICAL, NORMATIVE AND EMPIRICAL PARADIGM OF GENERAL PRINCIPLES OF GOOD GOVERNANCE (AUPB AS A REVIEW OF PRESIDENTIAL IMPEACHMENT

    Directory of Open Access Journals (Sweden)

    Nadir Nadir

    2017-03-01

    Full Text Available Philosophical validity showed of the Principles of Good Governance (AUPB as A review to Presidential impeachment, is a principle of AUPB that contains ethical normative values used as the foundation of good governance, clean and respectable, moreover to complement the shortcomings and ambiguities in law. Technically, the application of AUPB by the judges of the Constitutional Court (MK-RI can be approached through induction and deduction legal reasoning. The method of implementing AUPB by the judges of the Constitutional Court (MK-RI is accomplished by deductive at first, meaning that the special rules is focused more to the certain field of law, then these are deducted based on its basic rules and deducted again into the rules of substantive, and deducted again into the rules of cases. After that, it starts to applicate the rules of case based on the concrete case by the judge, because of the nature of the judges of the Constitutional Court (MK-RI is kholifah fil'ardi as the representative of God on earth to uphold the law and justice. While theoretically AUPB is valid, the judge ius curia Novit as a verdict maker to perform legal discovery (rechtsvinding. Empirically AUPB is valid, it can be seen from the cases of impeachment against the President of the United States William Jefferson Clinton, on suspicion of "abominably act" (misdemeanors. Additionally, AUPB empirically has been tested through jurisprudence since Amtenarenwet 1929 officially applied on March 1, 1933. Centrale Raad van Beroep, in his verdict on June 22, 1933, and the jurisprudence verdict of Hoge Raad on November 13, 1936, and the jurisprudence verdict of Hoge Raad 1919. While the normative validity is based on the leading legal doctrine, that AUPB is positioned as the unwritten laws that must be obeyed by the government, and AUPB considered as a part of positive law. Moreover, in Indonesia AUPB incarnates in various legislations even though his name is remained as principal.

  10. Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

    Directory of Open Access Journals (Sweden)

    Nicholas Wasonga Orago

    2013-12-01

    Full Text Available On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs, an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.

  11. Concorso eventuale nell’associazione mafiosa: la formazione del diritto vivente e la praticabilità investigativa e processuale delle soluzioni applicative / Concours externe en association mafieuse : la constitution du droit vivant et l’application possible des solutions envisagées à l’enquête et à la procédure pénale / Possible complicity in mafia organised crime

    Directory of Open Access Journals (Sweden)

    Rombo Vincenzo

    2012-04-01

    Full Text Available While maintaining its inherent characteristics, inspired by a violent logic of domination, the Mafia is evolving, becoming capable of dealing with society in different contexts and in ways that are beyond its archaic methods of operation.In this sense, the Italian penal jurisprudence has authorized the institution of the crime of possible complicity in mafia organized crime with the attempt to combat such a form of flanking on mafia association and contribution, perpetrated by outsiders to the traditional social environment of this phenomenon.A carefully reading of this offense allows the author to trace the evolution of the Supreme Court jurisprudence on possible complicity in mafia organized crime, grasping the critical issues and suggesting a possible legislative solution.Même si ses caractéristiques typiques, inspirées par une logique violente de domination, restent inchangées, la mafia évolue, devenant capable d’établir des relations avec la société globale grâce à des modes opératoires différents par rapport à ses propres méthodes archaïques. En ce sens, la jurisprudence a autorisé l’utilisation du concours externe en association mafieuse pour essayer de combattre les formes de soutien et de contribution à l’association mafieuse assurées par des personnes étrangères au contexte social traditionnel du phénomène. Une lecture prudente de ce délit permet d’examiner l’évolution jurisprudentielle de la Cour de Cassation afin de saisir les criticités et d’envisager une possibilité de solution normative.

  12. THE ROLE OF THE STATE IN ADAM SMITH’S THOUGHT SYSTEM AND MODERN PUBLIC FINANCE THEORY: A COMPARATIVE EVALUATION

    Directory of Open Access Journals (Sweden)

    Turan YAY

    2010-07-01

    Full Text Available What are the main functions of the state? Which functions must be fulfilled by the state, which functions must be not? How should the state fulfill these responsibilities? What must be the main principles of the state, related to public expenditures, taxation and debt policies? In this paper, the place of the role and functions of the state in Adam Smith’s thought system will be discussed. In this context, especially the related parts of the Wealth of Nations and Lectures on Jurisprudence will be focused on and evaluated in the light of contemporary public finance theory

  13. Ebu’l-Feth ‘Abdilkerîm Eş-Şehristânî’ye Göre İnsan Ve Fiilleri

    OpenAIRE

    Doğan, Hüseyin

    2014-01-01

    According to The Abu al-Fath Abd al-Kerim as-Shahrastani and Human and His Actions Abu al-Fath Abd al-Kerim as-Shahrastani on Islam science and culture occupy an important place is the thinker with opinions and thoughts. Kalam (Theology), History of İslamic Sects and Religions or Tafsir (Interpretation) and Jurisprudence especially important works in the field of colocated Shahrastani belief in the tradition of Imam Abu al-Hasan al-Eş‘ari and this line has remained committed to perpetuating ...

  14. SANCTIONING DUPLICATION IN ADMINISTRATIVE AND PENAL AREAS

    Directory of Open Access Journals (Sweden)

    José Manuel Cabrera Delgado

    2014-12-01

    Full Text Available This article provides a first approach from the point of view of jurisprudence, to the recurring problem of concurrency sanctions in cases where further intervention of the courts has become necessary for administrative action. In this regard, the main judgments of both the Constitutional Court and the Supreme Court is, that have shaped the decisions that must be applied from the administrative level, in particular by educational inspectors, when it is foreseeable that it can produce a duplication of disciplinary procedures in the two areas, penal and administrative.

  15. Revocación popular y restricción para el legislador en Italia: la prohibición de restauración se aplica hasta que se produzca un "cambio del marco político" o "circunstancias de hecho"//Popular revocation and restriction for the legislator in Italy

    Directory of Open Access Journals (Sweden)

    Giampietro Ferri

    2015-03-01

    Full Text Available RESUMEN Este trabajo analiza la jurisprudencia constitucional italiana sobre los efectos de la revocación popular de una ley. La Corte Costituzionale italiana intenta conciliar la exigencia de garantizar el libre ejercicio de la función legislativa con aquella de tutelar la voluntad popular que se ha expresado mediante el referéndum derogatorio ABSTRACT This paper analyzes the Italian constitutional jurisprudence on the effects of popular revocation of a law. The Italian Constitutional Court attempts to reconcile the need to guarantee the free exercise of the legislative function with that of protecting the people's will has been expressed by the derogatory referendum.

  16. Disaggregating Corporate Freedom of Religion

    DEFF Research Database (Denmark)

    Lægaard, Sune

    2015-01-01

    The paper investigates arguments for the idea in recent American Supreme Court jurisprudence that freedom of religion should not simply be understood as an ordinary legal right within the framework of liberal constitutionalism but as an expression of deference by the state and its legal system...... to religion as a separate and independent jurisdiction with its own system of law over which religious groups are sovereign. I discuss the relationship between, on the one hand, ordinary rights of freedom of association and freedom of religion and, on the other hand, this idea of corporate freedom of religion...

  17. The abolition of 'the person' as a legal category in nazi philosophy of law

    DEFF Research Database (Denmark)

    Petersen, Lars Axel

    2007-01-01

    philosophy, the work of philosopher and professor of law, Karl Larenz (1903-1993), during the Nazi regime in Germany (1933-1945). Larenz and others strove to reform private law (Zivilrecht or bürgeriches Recht) in conformity with National Socialism. Central to that - racist, to be sure - project...... 1945. Extensive historical research exists on these philosophical ideas and their relationship to the jurisprudence, legislation, and legal practice during the Third Reich. However, I would like to use a periodical characterisation, with focus on Karl Larenz and his works, as a backdrop for discussing...

  18. European Law in the Making:

    DEFF Research Database (Denmark)

    Rasmussen, Morten

    Traditionally, the Court of Justice of the European Coal and Steel Community (ECSC) has mainly been considered the somewhat dull predecessor to the more famous Court of Justice of the European Communities, which in 1963-64 ‘constitutionalised’ the Treaties of Rome with the seminal judgments of Van...... 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...

  19. Multiakad dalam Transaksi Syariah Kontemporer pada Lembaga Keuangan Syariah di Indonesia

    Directory of Open Access Journals (Sweden)

    Hasanudin Maulana

    2016-02-01

    Full Text Available The development of Islamic finance in Indonesia affects the development of Islamic finance products dynamically. The agreement in Islamic transactions underwent a variety ofinnovations from several existing agreements in mu‘âmalah jurisprudence concept. One of them is the concept of multi-agreements in a transaction. Transactions with these multiagreement forms exist in almost Islamic products currently. This article also discusses various scholarly opinions with all variants of the concept multi-agreements.DOI: 10.15408/aiq.v3i1.2518

  20. Extraordinary Appeal´S General Repercussion and Third Parties in the Constitutional Jurisdiction

    Directory of Open Access Journals (Sweden)

    Edilene Lôbo

    2016-06-01

    Full Text Available General repercussion, aiming to fight excess of extraordinary appeals and unifying jurisprudence through serial rulings, reveals an essential technique to make collective rights feasible. However, recent procedural legislation gave powers to decide on the matter (exercising the admissibility appraisal of the extraordinary appeal to the lower courts, taking it from the Brazilian Supreme Court, at the same time only accepting organizations as thirdparties. This situation goes against the Democratic Constitutional Procedure paradigm, signaling this work´s goal: to redesign the situation starting from the Open Society of Interpreters theory and from the legal procedure as a theory of the democratic ruling.

  1. Responsabilidade Civil decorrente do Abandono Afetivo

    Directory of Open Access Journals (Sweden)

    Welington Oliveira de Souza Costa

    2015-11-01

    Full Text Available O presente artigo jurídico tem por finalidade demonstrar a aplicabilidade do instituto da responsabilidade civil decorrente do abandono afetivo aos genitores que negligenciem seu cuidado para com os filhos, indenizando-os em razão do dano decorrente. Para tanto, será demonstrada a possibilidade de associação do instituto da responsabilidade dentro do direito de família e os dispositivos aplicáveis, inclusive aqueles relativos à solução de conflitos de princípios, apontando, ainda, a jurisprudência correlata.

  2. A internação de adolescentes pela lente dos tribunais Adolescent internment by the court's point of view

    Directory of Open Access Journals (Sweden)

    Maria Auxiliadora Minahim

    2011-06-01

    Full Text Available Desde sua entrada em vigor, o Estatuto da Criança e do Adolescente sofre sistemáticas críticas no debate público não havendo, entretanto, no campo da doutrina especializada e da jurisprudência efetivos esforços para uma compreensão do alcance da lei e de seus princípios sobretudo quando o tema é a imposição de medidas de internação a adolescentes autores de infração penal. Este texto procura demonstrar a feição homogênea e estável da jurisprudência brasileira nos Tribunais Estaduais nessa matéria à luz dos principais argumentos utilizados como fundamentação das decisões em sede recursal. Alguns resultados da pesquisa "Responsabilidade e garantias ao adolescente autor de ato infracional: uma proposta de revisão do ECA em seus 18 anos de vigência" apoiada pela Secretaria de Assuntos Legislativos do Ministério da Justiça, ilustram as dificuldades de mplementação dos preceitos legais, possibilitando refletir se é a textura aberta da lei o que vem favorecendo a persistência de argumentos extrajurídicos e ideológicos em sua interpretação.Since its approval, The Child and Adolescent Act has been attacked for several critics in the public debate. However neither the specialized dogmatic nor jurisprudence have presented effective efforts to the comprehension of the law or its principles, especially related to internment measures applied to young offenders. the text shows the homogeneous appearance of the brazilian jurisprudence into the State Courts, according to the most used arguments by the decisions. some results from the "Responsibility and Guarantees to young offender: a revision proposal for the child and adolescent act in 18 years of existence" research illustrate these difficulties to implement the legislation, avoiding the consideration regarding the open texture of the law as a possible cause for the persistence of extralegal and ideological arguments on its interpretation.

  3. Autonomía universitaria y derecho a la educación: Alcances y límites en los procesos disciplinarios de las instituciones de educación superior

    Directory of Open Access Journals (Sweden)

    Renata Amaya

    2007-04-01

    Full Text Available This article explores the scope of both the right to education and university autonomy in order to asses how these rights may limit each other in the disciplinary procedures of institutions of higher education. Additionally, it analyzes the tensions that can arise between the right to education, university autonomy and due process within disciplinary environments, as well as examines what tools recent constitutional jurisprudence offers to resolve such conflicts. Lastly, the article reflects on what the goals of disciplinary processes should be in order for institutions of higher education to be able to fulfill their constitutionally-mandated social function.

  4. Rekonstruksi Kebebasan Hakim dalam Memutus Perkara Pidana Berbasis Hukum Progresif

    OpenAIRE

    Hasibuan, Safni Kholidah; ', Erdianto; Indra, Mexsasai

    2016-01-01

    As the evolution continues to grow from the scientific side, the idea to establish the existence of jurisprudence to be, True science is also growing. It should be noted carefully that in taking legal action or law enforcement then, law enforcement does not solely work only to see the law in its foundation as the rule of law only, but also should build on the foundations of other, more important, the bases were formulated by Radbruch law as a fundamental value, namely,certainty,justice,andexp...

  5. The Egyptian Islamic Group’s Critique of Al-Qaeda’s Interpretation of Jihad

    Directory of Open Access Journals (Sweden)

    Paul Kamolnick

    2013-10-01

    Full Text Available A specific branch of Islamic jurisprudence (fiqh al-jihad regulates the waging of the jihad of the sword (jihad bis saif. In this article, a detailed exposition is presented of the Egyptian Islamic Group’s (IG; Al-Gama’a Al-Islamiyya use of fiqh al jihad against Al-Qaeda. The present author’s ‘jihad-realist’ approach is first briefly described; the IG’s critique of AQ systematically outlined; and in conclusion, implications are derived for counter-radicalisation strategies.

  6. The initiative of the judge in matters of evidence. Aspects of comparative law

    Directory of Open Access Journals (Sweden)

    Andreea Ciurea

    2012-01-01

    Full Text Available This paper aims at exploring a controversial issue in doctrine, jurisprudence and legislation of European countries and Latin America: the role judges should play in the system of evidence in the civil trial. Certain legislations and some theorists argue for a judge to be an "expectant observer", other for an active judge, a guide of the trial. We will try to emphasize the practical advantages and disadvantages of the existing theories (especially the Romanian, French and Spanish ones, in order to decide which solution is the most effective to achieve the purpose of civil trial: social peace.

  7. Law and Learning in the Middle Ages

    DEFF Research Database (Denmark)

    This volume contains papers presented at the conference on "Law and Learning in the Middle Ages" held at the Carlsberg Academy in Copenhagen in May 2005. Here, a group of European and American scholars give their contribution to the examination of the theological and legal schooling...... that the 'creators' of the laws received at the major centres of learning in Europe, and address a number of important questions concerning the creation and development of legal professions and the dynamics between legal practice and theoretical, learned approaches to jurisprudence. Contributors to this volume...

  8. Effects of opposability of the agreement in the New Romanian Civil Code

    Directory of Open Access Journals (Sweden)

    G. TIŢA-NICOLESCU

    2012-01-01

    Full Text Available The valid contract is fully effective between the parties, respectively the contract is enforceable by the parties, this being the goal and the effect of its signature. At the same time, absolutely exceptionally, the contract is effective against the third parties, respectively against parties who did not sign it. These effects of the contract are stipulated by the law and they are known in the doctrine and in the jurisprudence as being the principle of the enforceability of the contractual effects and respectively, the relativity principle of the contractual effects, but we do not intend to talk about this principle in this paper

  9. Insane acquittees and insane convicts: the rationalization of policy in nineteenth-century Connecticut.

    Science.gov (United States)

    Goodheart, Lawrence B

    2017-12-01

    A current situation in Connecticut of whether a violent insane acquittee should be held in a state prison or psychiatric facility raises difficult issues in jurisprudence and medical ethics. Overlooked is that the present case of Francis Anderson reiterates much of the debate over rationalization of policy during the formative nineteenth century. Contrary to theories of social control and state absolutism, governance in Connecticut was largely episodic, indecisive and dilatory over much of the century. The extraordinary urban and industrial transformation at the end of the Gilded Age finally forced a coherent response in keeping with longstanding legal and medical perspectives.

  10. LA CLÁUSULA QUE HABILITA A LA EMPRESA DE MEDICINA PREPAGA A INCREMENTAR EL VALOR DE LA CUOTA EN BASE A LA EDAD DEL AFILIADO: SU ENCUADRE EN LA ENUMERACIÓN DEL ART. 37 DE LA LEY 24.240 DE ARGENTINA

    Directory of Open Access Journals (Sweden)

    Florencia Vazzano

    2015-09-01

    Full Text Available In this paper we focus on the contract clause prepaid medical why the utility company unilaterally has the power to increase the share of affiliate because of their older age. Their analysis will be from the list of unfair terms of art. 37 inc. b of the Law 24,240 on Consumer and effects provided by this law, and the law 26,682 which establishes the regulatory framework for prepaid medicine companies.Also, select Argentina jurisprudence has declared the nullity of such clause considered abusive and harmful for the right to health of the affiliated company, which has constitutional right. Keywords:

  11. El concepto de genocidio y la “destrucción parcial de los grupos nacionales” Algunas reflexiones sobre las consecuencias del derecho penal en la política internacional y en los procesos de memoria

    OpenAIRE

    Feierstein, Daniel

    2016-01-01

    El art culo analiza las distintas interpretaciones de la Convenci n para la Prevenci n y la Sanci n del Delito de Genocidio y sus impactos en la construcci n de la memoria colectiva de las sociedades que han vivido esta experiencia hist rica de terror masivo estatal. Centrando el eje de an lisis en el grupo sobre el que se considera que se ejerci la violencia ?y la novedad que implica pensarlo como el conjunto del grupo nacional sobre el que se implement el terror?, se compara la jurisprude...

  12. Confrontation clause

    Directory of Open Access Journals (Sweden)

    Tkachuk Sviatoslav

    2016-07-01

    Full Text Available The Sixth Amendment to the United States Constitution enumerates a cluster of rights granted to criminal defendants and is designed to make criminal prosecutions more accurate, fair, and legitimate. The Confrontation Clause, which states that „In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witness against him” should not be underestimated. This article seeks to analyse the evolution of the Confrontation Clause and the extent of a defendant’s right to face-to-face confrontation. The article analyse the case Crawford v. Washington, which was a key shift in the Supreme Court’s Confrontation Clause jurisprudence.

  13. Climatic change and development of law in 2005. Preliminary advice and report of the 89th general meeting of the Association for Environmental Laws, September 30, 2005

    International Nuclear Information System (INIS)

    Van Angeren, J.R.; Bazelmans, J.M.; Cozijnsen, C.J.H.; Driesprong, A.; Van der Jagt, J.A.E.; Peeters, M.; Verbaan, I.J.; Van Rijswijck, H.F.M.W.; Ramnewash-Oemrawsingh, S.T.; De Kramer, P.T.

    2006-01-01

    The development of laws to control the climate change problem has only just begun. The Netherlands, too, has legal measures for controlling this problem and first jurisprudence has developed. The working group 'Climate change and development of laws', which was set up by the Dutch Society for Environmental Law, has thoroughly examined the legal side of climate change. This resulted in a preliminary advice in which international and European legislative developments, various aspects of emission trading and its international variant are discussed. Moreover, national and international water management in relation to the consequences of climate change are also examined. (mk) [nl

  14. Deodorising biofilters: reliable systems for meeting the new odour prevention requirements; Biofiltros de desodorizacion: sistemas fiables para afrontar las nuevas exigencias en prevencion de olores

    Energy Technology Data Exchange (ETDEWEB)

    Echtner, E.; Bieger, K.

    2002-07-01

    Bad smell that inevitably are connected with waste water treatment are becoming first range problems in the frame of European legislation and jurisprudence. Efficient deodorization systems are necessary to prevent sanctions and quarrels with administration and neighbours. Biological deodorization filters are a viable, proved, efficient and economic alternative to classical wastes gas treatment systems. With and appropriate design retention yields of>99% can be achieved. International studies show an increasing acceptance of these filters in waste water treatment plants. Indications about the most important characteristics in the design of the equipment's are given. (Author) 12 refs.

  15. Third Party Liability governing Dangerous and Nuclear Activities

    International Nuclear Information System (INIS)

    Di Martino, Vittorio.

    1979-01-01

    The introductory chapters of this book analyse the concept of fault as a basis for third party liability and the evolution of jurisprudence and doctrine towards the concept of absolute liability. The following part covers the Italian system of liability for hazardous activities. The nuclear third party liability system is then analysed according to existing international conventions and nuclear legislation in several countries. The Appendix contains various legislative and regulatory texts on nuclear third party liability in Italy and in other countries which provide for special legislation in this field. (NEA) [fr

  16. Captivity, citizenship, and the ethics of otherwise in the society-of-captives thesis: a commentary on Arrigo.

    Science.gov (United States)

    Brown, Michelle

    2013-06-01

    In this engagement with Professor Bruce Arrigo's psychological jurisprudence model, I explore his critique of captivity and risk management. I am particularly interested in his claims that incarceration culminates in society's own captivity, that the most destructive aspect of captivity is its foreclosing of human difference and potentiality, and that a praxis that is both clinical and mindful might point a way out. By way of a case anecdote, I interrogate several of the key terms in Arrigo's formulation-citizenship, reform, revolution, and praxis-in an effort to further conjugate from the ground up such an innovative and important set of possibilities.

  17. Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

    OpenAIRE

    Guinier, C. Lani; Blacksher, James

    2014-01-01

    The "equal sovereignty" principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be "citizens" within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to al...

  18. The Prevailing of the Human Nature in the Economics of Adam Smith

    Directory of Open Access Journals (Sweden)

    Mara Magda Maftei

    2006-07-01

    Full Text Available Adam Smith is thought to be the first economist, his economic considerations being even nowadays valid, no matter the everchanging connotations of capitalism throughtout the world. Unfortunately, only The Wealth of Nations was translated in Romanian, and that is why there is a tendency among us to analyze Smith only by means of his economic paradigma, leaving out his preoccupations of moral philosophy, of finding the connections between political, juridical and economic aspects. Above all, we should insist on his obsession with human nature, obsession to be embbeded within the increasing importance of economic sciences in his time, growing out of moral philosophy and jurisprudence.

  19. The Prevailing of the Human Nature in the Economics of Adam Smith

    Directory of Open Access Journals (Sweden)

    Mara Magda Maftei

    2006-09-01

    Full Text Available Adam Smith is thought to be the first economist, his economic considerations being even nowadays valid, no matter the everchanging connotations of capitalism throughtout the world. Unfortunately, only The Wealth of Nations was translated in Romanian, and that is why there is a tendency among us to analyze Smith only by means of his economic paradigma, leaving out his preoccupations of moral philosophy, of finding the connections between political, juridical and economic aspects. Above all, we should insist on his obsession with human nature, obsession to be embbeded within the increasing importance of economic sciences in his time, growing out of moral philosophy and jurisprudence.

  20. L'égalité entre les femmes et les hommes dans l'emploi : réflexions sur l'évolution récente du droit français

    OpenAIRE

    Sénac, Réjane

    1985-01-01

    Le principe d’égalité a un statut particulier en droit du travail dans la mesure où il s’agit du droit de la subordination par excellence. La notion de « discrimination justifiée » a été dégagée par la jurisprudence du Conseil d’État et du Conseil constitutionnel. Est-elle transposable dans le droit du travail ? Afin d’analyser la notion complexe de l’égalité entre les sexes dans l’emploi, nous examinons la conception normative de la fonction jurisprudentielle. L’actualité juridique et politi...

  1. Autonomy and Vulnerability of Elderly People: Emblematic Judicial Responses

    Directory of Open Access Journals (Sweden)

    María Isolina Dabove

    2018-03-01

    Full Text Available This paper discusses the private autonomy of older people when they are in situations of dependency according to the “Law of Old Age”. For this, the author presents the autonomy system: the capacity, the will, the guardianship and the schemes of support, assistance and representation according to the Argentinean Civil and Commercial Code, in force since August 2015, its scope and the jurisprudence. In addition, it is considered the recent Inter-American Convention on the Protection of the Human Rights of Older Persons (CIDHPM of the OAS, in force since January 11, 2017.

  2. A Imunidade Tributária Aplicada aos Livros Eletrônicos e Ereaders

    OpenAIRE

    Carneiro, Thiago Lima; Meneses, Karina da Silva

    2016-01-01

    A Constituição Federal de 1988 determina a imunidade tributária dos livros e do papel destinado à sua produção, a fim de difundir o conhecimento e garantir a liberdade de expressão. Ocorre que o desenvolvimento tecnológico acarretou o surgimento de livros eletrônicos e aparelhos destinados à sua leitura, os chamados e-readers. Diante desse novo paradigma, resta necessário reavaliar o texto constitucional a fim de mantê-lo atualizado. A jurisprudência brasileira não é uníssona quanto ao assunt...

  3. O regime brasileiro de tributação de lucros auferidos por sociedades controladas e coligadas no exterior: uma visão do atual regime por meio da ótica da teoria do rent seeking

    OpenAIRE

    Hirata, Dalton Yoshio

    2012-01-01

    O presente trabalho tem por objetivo analisar, pela ótica da teoria do rent seeking, a evolução da legislação e da jurisprudência administrativa e judicial acerca do regime da tributação dos lucros, ganhos de capital e rendimentos auferidos por sociedades controladas e coligadas no exterior. Observar-se-á a hipótese da legislação e das suas diversas interpretações refletirem interesses predominantemente de apropriação de renda, tanto por parte da Administração Pública quanto dos agentes priva...

  4. The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis

    DEFF Research Database (Denmark)

    Marchuk, Iryna

    This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective in light of the catalyzing impact of the criminal law theory developed in major world legal systems on the crystallization of the substantive part...... of international criminal law. This study offers a critical overview of international and domestic jurisprudence in regards to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive...... comparative analysis of substantive criminal laws in selected legal jurisdictions....

  5. Commentaires à propos de la loi française sur le harcèlement moral au travail

    OpenAIRE

    Marie-France Hirigoyen; Claire Bonafons

    2005-01-01

    Les auteurs montreront comment en France, à partir d’une simple description de la souffrance engendrée par le harcèlement, on a aboutit rapidement à une loi sanctionnant ce fléau, puis ils feront le point sur les jurisprudences et sur l’évolution des comportements entraînés par cette loi et enfin, ils proposeront des axes de recherches et des pistes d’amélioration des dispositions législatives existantes.The authors will show how in France, starting with a simple description of the suffering ...

  6. Commentaires à propos de la loi française sur le harcèlement moral au travail

    OpenAIRE

    Hirigoyen, Marie-France; Bonafons, Claire

    2013-01-01

    Les auteurs montreront comment en France, à partir d’une simple description de la souffrance engendrée par le harcèlement, on a aboutit rapidement à une loi sanctionnant ce fléau, puis ils feront le point sur les jurisprudences et sur l’évolution des comportements entraînés par cette loi et enfin, ils proposeront des axes de recherches et des pistes d’amélioration des dispositions législatives existantes. The authors will show how in France, starting with a simple description of the suffer...

  7. Non-adversarial justice and the coroner's court: a proposed therapeutic, restorative, problem-solving model.

    Science.gov (United States)

    King, Michael S

    2008-12-01

    Increasingly courts are using new approaches that promote a more comprehensive resolution of legal problems, minimise any negative effects that legal processes have on participant wellbeing and/or that use legal processes to promote participant wellbeing. Therapeutic jurisprudence, restorative justice, mediation and problem-solving courts are examples. This article suggests a model for the use of these processes in the coroner's court to minimise negative effects of coroner's court processes on the bereaved and to promote a more comprehensive resolution of matters at issue, including the determination of the cause of death and the public health and safety promotion role of the coroner.

  8. ESTUPRO DE GUERRA: O SENTIDO DA VIOLAÇÃO DOS CORPOS PARA O DIREITO PENAL INTERNACIONAL

    OpenAIRE

    Passos, Kennya Mesquita; Losurdo, Federico

    2017-01-01

    O presente estudo tem como objetivo analisar o processo pelo qual o estupro sistemático de mulheres em circunstâncias de guerra, por muito tempo silenciado e esquecido pelo direito internacional, passou a ser reconhecido como um crime contra a humanidade e como crime de genocídio, identificando-o como manifestação da violência de gênero, acompanhando o desenvolvimento dos dispositivos de proteção aos direitos humanos a partir da jurisprudência produzida pelos Tribunais Internacionais, desde N...

  9. INTERPRETATION AND APPLICATION OF LEGAL ENGLISH LANGUAGE UNITS IN PRACTICE

    Directory of Open Access Journals (Sweden)

    Semenova, E.V.

    2017-03-01

    Full Text Available In this article the variety of borrowings, internationalisms, phraseological units, idioms in the professional-oriented texts is considered. It opens an opportunity to understand the statement of a thought and laconicism of its expression, including the field of jurisprudence. The research objective is demonstration the ways of interpretation and application of legal English language units in practice through characteristic features of English legal terminology. Particular attention is paid to the peculiarities of phraseological units and their translation in oral and written speech.

  10. Competitividade empresarial, custos trabalhistas e mercados: possibilidades e limites de reconhecimento da fun??o concorrencial do direito do trabalho

    OpenAIRE

    Lucena Filho, Humberto Lima de

    2016-01-01

    As fun??es cl?ssicas do direito do trabalho arroladas pela doutrina, pela legisla??o e pela jurisprud?ncia especializada n?o contemplam, na esfera nacional, a sonega??o sistem?tica de direitos trabalhistas como conduta suficiente para o enquadramento nas hip?teses de comportamento anticoncorrencial. Ao tempo em que isto se sucede no plano interno, debates e provid?ncias t?m sido tomadas, na seara internacional, no intuito de n?o se permitir que a legisla??o trabalhista seja um instrumento de ...

  11. Modern Interpretations of the Theory of Criminal Misdemeanor in Administrative Law of Russia

    Directory of Open Access Journals (Sweden)

    Anatolii V. Kirin

    2017-12-01

    Full Text Available The article examines in historical retrospect the experience and tendencies of parallel development of criminal and administrative responsibility in domestic jurisprudence and legislation from the 19th century to the present day. The Authors criticize the attempts to return administrative offenses to a three-tier system of criminal delicts on the basis of the concept of the Criminal Code of 1903. It is condemned not so much as an attempt to “reanimate” criminal misdemeanor by representatives of criminal law science, but similar attacks on the independent species status of administrative responsibility on the part of individual colleagues-administrativists

  12. Enhancements to knowledge discovery framework of SOPHIA textual case-based reasoning

    Directory of Open Access Journals (Sweden)

    Islam Elhalwany

    2014-11-01

    This paper contributes to propose enhancements to SOPHIA approach that aims to enhance the retrieval efficiency and increase the precision degree. It also aimed to grantee that all results will have the same subject of the user query. The enhancements include performing an automatic classification to the case-base before the clustering step in the indexing stage, and include performing an automatic classification to the user query before the retrieval stage. Moreover, proofing that SOPHIA approach is a domain and language independent by applying it in the domain of Islamic jurisprudence in Arabic language.

  13. 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...

  14. Law before Gratian: Law in Western Europe c. 500-1100

    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...

  15. Multi- and trans-disciplinarity in radioactive waste disposal. Fundamentals - examples - knowledge synthesis; Inter- und Transdisziplinaritaet bei der Entsorgung radioaktiver Reststoffe. Grundlagen - Beispiele - Wissenssynthese

    Energy Technology Data Exchange (ETDEWEB)

    Smeddinck, Ulrich [Technische Univ. Braunschweig (Germany). Inst. fuer Rechtswissenschaften; Kuppler, Sophie [Karlsruher Institut fuer Technologie (KIT), Karlsruhe (Germany). Inst. fuer Technikfolgenabschaetzung und Systemanalyse (ITAS); Chaudry, Saleem (ed.) [Technische Univ. Clausthal, Clausthal-Zellerfeld (Germany). Inst. fuer Endlagerforschung

    2016-07-01

    The report covers the following issues: radioactive waste disposal - a multi- in trans- disciplinary challenge; political science and nuclear waste governance; interdisciplinary analysis of the radioactive waste disposal concepts - geochemistry bases analyses; radioactive waste disposal and robust jurisprudence; the contribution of geology to the underground storage of radioactive waste; ionizing radiation protection - interdisciplinary points; risk evaluation; possibilities and constraints of a standardization of scientific terms for interdisciplinary cooperation, safety case and interdisciplinarity; the concept of voluntariness in relation with site final repository selection a philosophical und juridical view; interdisciplinarity - engineers and philosophers; knowledge strategies on the way to radioactive waste disposal: scientific synthesis on radioactive waste disposal on the science platform ENTRIA.

  16. General Lines of Disregard for the Legal Personality on Irregular Dissolution the Company

    Directory of Open Access Journals (Sweden)

    Fábio Augusto Barcelos Moreira Corrêa

    2016-12-01

    Full Text Available This article will analyze the Institute of disregard for the legal personality in situations involving irregular dissolution the limited liability company, in light of the jurisprudence of the Superior Court Tribunal. We highlight the impact that new code of Civil procedure will provide for analysis to safeguard the autonomy of assets of the legal person, as well as the guarantee of due process and of ample defense, directly impacting on business law. The analysis aims to contribute to the understanding of the Institute, and the systematic procedure. Adopting the dialectical methodology and criticism.

  17. Věcněprávní zajištění dluhů v syndikovaném úvěrovém financování

    OpenAIRE

    Živanský, Jakub

    2015-01-01

    This thesis analyses the legal regime of in rem security interests, in particular pledges and security assignments of rights, in the context of syndicated loan finance. The thesis draws mainly from the Act No. 89/2012 Coll., the Civil Code, and the Act No. 90/2012 Coll., on Commercial Companies and Cooperatives (the Corporations Act), and related legal acts, case law and jurisprudence. In the first chapter, the author describes the main elements of a facilities agreement and the typology of l...

  18. Judicial Influence on Policy Outputs?

    DEFF Research Database (Denmark)

    Martinsen, Dorte Sindbjerg

    2015-01-01

    to override unwanted jurisprudence. In this debate, the Court of Justice of the European Union (CJEU) has become famous for its central and occasionally controversial role in European integration. This article examines to what extent and under which conditions judicial decisions influence European Union (EU......) social policy outputs. A taxonomy of judicial influence is constructed, and expectations of institutional and political conditions on judicial influence are presented. The analysis draws on an extensive novel data set and examines judicial influence on EU social policies over time, that is, between 1958...

  19. POLICY PORT IN LATIN AMERICA

    Directory of Open Access Journals (Sweden)

    María Victoria Flores

    2012-07-01

    Full Text Available This work achieves a contextual approach the port services market in Latin America, from the document review the legal framework and jurisprudence. It observes and evaluates the phenomenon under study, establishing a correlation between the grant in the shape of the free supply and demand for services and operating in a market of few suppliers, resulting in national legislation and concession contracts defending a free market and on the other hand, case law on market practice indicating that there is no free market to defend.

  20. Towards a reconstruction of the contributions of the Argentine experience to the development of International Human Rights Law: the voices of Claudia Fontes and Paula Bombara

    Directory of Open Access Journals (Sweden)

    Estefanía Giaccone

    2017-12-01

    Full Text Available In the present dissertation, we intend to relate and contrast the representations that emerge from legal and political-institutional discourses on the crime of forced disappearance of persons in the Argentinian historical experience. In this sense, we will analyze the representations of the crime of forced disappearance of persons in two artistic works: The Reconstruction of Pablo Miguez Portrait, Claudia Fontes’ sculpture, and The Sea and the Serpent, a novel by Paula Bombara, in order to read them into the perspective of law, with the jurisprudence and communications of international organizations that shape our unit of study.

  1. The Femicide and the Challenges to the Effectiveness of the Law Maria da Penha: Judicial Discretion and Legal Culture of Judges in the Treatment of Domestic and Family Violence against Women

    Directory of Open Access Journals (Sweden)

    Lilah de Morais Barrêto

    2016-12-01

    Full Text Available This article discusses the problem of femicide, emphasizing its bond with the cycle of domestic violence against women. The denial and underuse of the institutes stated in the Law Maria da Penha is the consequence of a traditional legal culture that deals this problem as a private issue and faces this kind of violence with a consensual paradigm of justice. In this essay, we will analyze the judgments by the Brazilian Supreme Court in ADC nº 19/DF and ADI nº 4424/DF, and the resistances of courts in following this settled jurisprudence.

  2. Autonomy of will principle and international instruments in the colombian judicial system

    Directory of Open Access Journals (Sweden)

    Leonardo Espinosa Quintero

    2009-06-01

    Full Text Available The irruption of International Business Law (IBL or the Uniform International Trade Law has produced a series of “waves” in the Colombian legal system. It has been attributed to the private autonomy of the will, as a principle protected by IBL, the authority to replace the government power of protecting the interests of society. However, despite this principle has existed for centuries, currently it has been subject of reinterpretation. This paper will specifically approach the ‘Reconstruction’ of this principle from the jurisprudence of the Colombian Constitutional Court perspective and from the academic proposal of the Colombian Professor Diego Eduardo Lopez Medina.

  3. On Domain Registries and Website Content

    DEFF Research Database (Denmark)

    Schwemer, Sebastian Felix

    2018-01-01

    such as Internet access service providers, hosting platforms, and websites that link to content. This article shows that in recent years, however, that the (secondary) liability of domain registries and registrars, and more specifically country code top-level domain registries (ccTLDs) for website content, has...... been tested in several EU Member States. The article investigates tendencies in the national lower-court jurisprudence and explores to what extent the liability exemption regime of the E-Commerce Directive applies to domain registries. The analysis concludes that whereas domain registries fall under...

  4. Limits of Freedom Expression: Analasys of HC 82.424/RS CASE

    Directory of Open Access Journals (Sweden)

    Nayara Gallieta Borges

    2016-12-01

    Full Text Available The right to freedom of expression is constitutionally guaranteed in the Brazilian democratic polity. However, this right is not absolute: it finds limits of ethics and law. The limits of freedom of expression are evident when we apply the principle of proportionality and balance with other rights provided for in our legal system in the light of the case. The relativization of freedom of expression in the judgment of HC 82,424 / RS has been a major paradigm shift in the jurisprudence of the Supreme Court and a case of great symbolic importance in the fundamental rights field.

  5. EL ABUSO DEL DERECHO: ENTRE LA MODERNIDAD Y LA POSMODERNIDAD

    Directory of Open Access Journals (Sweden)

    Gunther Gonzales Barrón

    2015-12-01

    Full Text Available The abuse of law is one of those legal concepts from which all speak, almost by intuition or common sense, and jurisprudence is not the exception, in their desire to support a decision allegedly tainted justice can use a simple phrase like all motivation. That is the risk of general legal concepts, but also its advantage as the indeterminacy allows the judge to address issues not regulated without reference to positivism, but get out of those narrow limits requires a strong argument justifying the sentence dose on grounds of practical rationality. The danger of generality amendment argument.

  6. The Corruption of Systemic Contour in Brazil and its Effects on the Protection of Human Rights

    Directory of Open Access Journals (Sweden)

    Lucas Sachsida Junqueira Carneiro

    2016-10-01

    Full Text Available This article investigates the connection involving corruption and Human Rights' protection, approaching the evolution of corruption's characteristics until today's experience of what is called institutionalized corruption. The knowledge of systemic corruption preeminent particularities are achieved through a series of data obtained in researches made by Centro de Referência do Interesse Público of UFMG, CNJ, Controladoria Geral da União, Fiesp, Ministério Público Federal and extensive survey on doctrine, jurisprudence, and legislation. We have introduced major flaws in the controlling system and shown the resultant repercussion to specify the leading consequences of corruption on the protection and guarantee of Human Rights.

  7. Games to get Hegemony in Iranian Politics : Participation of Islamic Jurists after the Revolution

    OpenAIRE

    Kuroda, Kenji

    2009-01-01

    After the Iranian Islamic Revolution in 1979, Islamic jurists have played an important role in the political arena of the new establishment. This paper aimed to describe changes in the Shī'ite jurisprudence academia in contemporary Iran, especially after the revolution. Thus I focused on owze-ye 'Elmīye (Shī'ite learning institution) in Qom before and after the revolution. Then I figured out the changes in the educational aspect and the administrative aspect. In addition, I tried to reveal a ...

  8. La interpretación del TJUE de la regulación de los despidos colectivos: su incidencia en el Derecho español

    Directory of Open Access Journals (Sweden)

    JUAN MOLINS GARCÍA-ATANCE

    2015-09-01

    Full Text Available The sentence of the ECJ of 13.5.2015 has rescinded the spanish Supreme Court jurisprudence that considered more favorable legislation on collective dismissal regulated in Workers' Statute that contained in Directive 98/59 La sentencia del TJUE de 13-5-2015 ha dejado sin efecto la doctrina jurisprudencial del TS que consideraba más favorable la regulación del despido colectivo del Estatuto de los Trabajadores que la contenida en la Directiva 98/59.

  9. LA JURISPRUDENCIA COMO INSTRUMENTO CULTURAL EN EL SIGLO XVI

    Directory of Open Access Journals (Sweden)

    Juan Abelardo Hernández Franco

    2013-11-01

    Full Text Available Jurisprudence was an important factor to introduce the syncretism between Duns Scotus understanding of the universals and the postglossators interpretation of Aristotle into the Novohispanic culture. Both factors end at the modern conception of the rights as substantial categories in each person. Regarding these elements it was possible to understand the fundamental rights of the Indians of Mexico against those of the Spaniards. In the roman law tradition the rights (ius appear, not like substantial categories, but like prerogatives or positions derived from an external circumstance to the person.

  10. The law on wastes. November 2016 - october 2017

    International Nuclear Information System (INIS)

    Lanoy, Laurence

    2017-01-01

    In France, the law on wastes has been subject to important reforms following the passing, in 2015, of the law on the 'energy transition for a green growth'. In the continuity of this law, various evolutions concerning regulations and jurisprudence have been applied. These evolutions mainly concern waste management modalities (technical prescriptions applicable to facilities receiving wastes, status of wastes, domestic wastes, radioactive wastes, special wastes and cross-border waste transfers, general orientations of French and European laws on wastes) and liabilities related to wastes (administrative liability, taxation related to wastes, waste producer liabilities)

  11. 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.

  12. La acción exterior de las Comunidades Autónomas: ¿hacia una nueva interpretación de la competencia exclusiva del Estado en materia de relaciones internacionales?

    Directory of Open Access Journals (Sweden)

    Joan David Janer Torrens

    2017-10-01

    Full Text Available t In the light of statutory provisions and consolidated constitutional jurisprudence, the Autonomous Communities have developed, with different intensity, actions that have meant an outward projection of their political activity. Recently, the regulatory framework for the external action of the Autonomous Communities has been complemented by the entry into force of Act 2/2014 on the Action and External Service of the State and Act 25/2014 on Treaties and other International Agreements, as well as with the adoption of Constitutional Court Judgment 85/2016 of 28 April and of Constitutional Court Judgment 228/2016 of 22 December. The two acts foresee important changes in different areas of autonomous regional external action, while the two judgments issued by the Constitutional Court have implied the introduction of a number of nuances to constitutional jurisprudence regarding the exclusive competence of the State in the field of international relations. The purpose of this study is, on the one hand, to analyze the impact that the two acts may have on the external action of the Autonomous Communities and, on the other, to assess whether both judgments have involved a reinterpretation of Article 149.1.3 of the Constitution granting the State new powers that imply to condition and to undermine the external action of the Autonomous Communities.

  13. Separation Of Powers In Ghana: The Evolution Of The Political Question Doctrine

    Directory of Open Access Journals (Sweden)

    Mtendeweka Owen Mhango

    2014-12-01

    Full Text Available In some democracies judiciaries have developed the political question doctrine to jurisprudentially resolve political questions and define their relationship with other branches of government. This doctrine is a function of the principle of the separation of powers and provides that there are certain questions of constitutional law that are constitutionally committed to the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them if doing so would intrude upon the functions of the elected branches of government. This article examines the evolution and current status of the political question doctrine in Ghanaian jurisprudence, which developed from American jurisprudence. It begins by briefly discussing the history of the doctrine and its modern application in America. It then discusses how this doctrine was imported into Ghana and applied by the Ghanaian judiciary. The article argues that while there are differences of opinion around the application of the political question doctrine within Ghana's judiciary, the doctrine is firmly part of Ghanaian constitutional law. The article observes that the difference of opinion among judges is over the proper application of the doctrine rather than on whether it forms part of Ghanaian constitutional law. The article also discusses a related issue of the constitutional status of Directive Principles of State Policy in chapter 6 of the Constitution of Ghana.

  14. Doctrine of Frustration of Contract in English, American and Iranian Law (Comparative Study

    Directory of Open Access Journals (Sweden)

    Mohammad Hadi Daraei

    2015-05-01

    Full Text Available Pacta sunt servanda” is one of the most fundamental principles in the common law and Iranian legal systems, which have been exposed to exceptions in the process of time. These exceptions are part of general doctrine of frustration. Iranians exceptions to this rule are named as “Ta`azzor” and “Ta`assor” rules. Doctrine of Frustration in Common law includes three subdivision theories: “impossibility of performance”, “frustration of purpose” and “impracticability” (hardship. All of these theories applied where a supervening event occurs. In English courts, only first two theories are accepted but third one is applicable in American courts. In imamieh Jurisprudence and Iranian law, “Ta`azzor” rule in most aspects is similar to Impossibility and “Ta`assor” rule is somehow like Impracticability. Some Iranian lawyers are said that we have no rule like “Frustration of Purpose” but I believe we can find traces of this theory in Imamieh jurisprudence and according which it is part of “Ta`azzor” rule.

  15. Kristeller maneuvers or fundal pressure and maternal/neonatal morbidity: obstetric and judicial literature review.

    Science.gov (United States)

    Malvasi, Antonio; Zaami, Simona; Tinelli, Andrea; Trojano, Giuseppe; Montanari Vergallo, Gianluca; Marinelli, Enrico

    2018-02-21

    A significant amount of data concerning maternal-fetal damage arising from the exertion of Kristeller maneuvers (KMs) or fundal pressure (FP) go unreleased due to medicolegal implications. For this reason, the paper gathers information as to the real magnitude of litigation related to FP-induced damages and injuries. The authors have undertaken a research in order to include general search engines (PubMed-Medline, Cochrane, Embase, Google, GyneWeb) and legal databases (De Jure, Italian database of jurisprudence daily update; Westlaw, Thomson Reuters, American ruling database and Bailii, UK Court Ruling Database). Results confirm said phenomenon to be more wide ranging than it appears through official channels. Several courts of law, both in the United States of America (USA) and in European Union (EU) Member States as well, have ruled against the use of the maneuver itself, assuming a stance conducive to a presumption of guilt against those doctors and healthcare providers who resorted to KMs or FP during deliveries. Given how rife FP is in mainstream obstetric practice, it is as if there were a wide gap between obstetric real-life and what official jurisprudence and healthcare institutions-sanctioned official practices are. The authors think that it would be desirable to draft specifically targeted guidelines or recommendations on maneuvers during vaginal delivery, in which to point out exactly what kinds of maneuvering techniques are to be absolutely banned and what maneuvers are to be allowed, and under what conditions their application can be considered appropriate.

  16. Compensation in Indian courts: Appropriate for environmental catastrophies

    International Nuclear Information System (INIS)

    Bongaerts, J.C.; Heinrichs, D.

    1985-01-01

    Suppose Indian courts would have had to deal with claims for compensation by victims and their relatives after the December 3, 1984 tragedy at Bhopal. Indian jurisprudence has no experience with claims for compensation with respect to damages following environmental catastrophes. For that reason no empirical investigation of the decision making by courts is possible. We may however gain some insight in the way courts would operate by looking into related cases. Automobile accidents may eventually constitute such a substitute set of cases, since they usually stem from a catastrophic concurrence of circumstances. Using a data set comprising some 140 cases from the Indian jurisprudence we empirically investigated the courts' decision making. For that purpose a model of decision making was set up and tested econometrically. We found a strong tendency to systematic behaviour and a strict adherence to the principles of Common Law. We also found that judges consider the cultural setting of their country, since they incorporate convictions on the duties of parents towards children. Finally, as expected, the occurrence of death and the degree of injury have a highly statistically different impact upon the amount of compensation. (orig./PW) [de

  17. Commentaires à propos de la loi française sur le harcèlement moral au travail

    Directory of Open Access Journals (Sweden)

    Marie-France Hirigoyen

    2005-11-01

    Full Text Available Les auteurs montreront comment en France, à partir d’une simple description de la souffrance engendrée par le harcèlement, on a aboutit rapidement à une loi sanctionnant ce fléau, puis ils feront le point sur les jurisprudences et sur l’évolution des comportements entraînés par cette loi et enfin, ils proposeront des axes de recherches et des pistes d’amélioration des dispositions législatives existantes.The authors will show how in France, starting with a simple description of the suffering caused by harassment, a law punishing this wrong was quickly arrived at. They will then summarize the jurisprudence and the evolution of the behaviours resulting from this law, and finally, they will propose research orientations and possibilities for improving the existing legislation.Los autores muestran cómo en Francia, a partir de una simple descripción del sufrimiento engendrado por el acoso, se llegó rápidamente a una ley que sanciona esta plaga. Los autores presentan luego, una síntesis de las jurisprudencias y de la evolución de los comportamientos que esta ley produjo y finalmente, proponen ejes de investigación y pistas para el mejoramiento de las disposiciones legislativas existentes.

  18. 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.

  19. Inclusive Democracy: Franchise Limitations on Non-Resident Citizens as an Unjust Restriction of Rights under the European Convention on Human Rights

    Directory of Open Access Journals (Sweden)

    Julie Fraser

    2017-04-01

    Full Text Available The Public International Law and Policy Group (PILPG advises parties in peace negotiations, on drafting post-conflict constitutions, and assists in prosecuting war criminals. As part of this work, PILPG assists States in establishing and implementing electoral systems that meet international standards for democratic elections, and undertakes election monitoring. Free and fair elections are crucial for the legitimacy of democratic States and are protected by human rights law. The present article focuses on the issue of the franchise and on the restrictions permitted under the European Convention on Human Rights (ECHR. Specifically, this article addresses franchise restrictions on non-resident citizens across ECHR member States. Setting out the protections for the franchise in Article 3 of Protocol No. 1 ECHR, this article analyses the permissible limitations on those rights according to the jurisprudence of the European Court of Human Rights (ECtHR. The article presents a comparative analysis of other voting rights cases, such as the limitations on prisoners’ franchise. After considering whether residency-based limitations pursue legitimate and proportionate aims, it questions whether blanket restrictions disenfranchising non-resident citizens should be permissible today. The article concludes by advocating the importance of an inclusive franchise for the legitimacy of democratic systems as well as the protection of individual rights, and inviting the ECtHR to revisit its jurisprudence on this topic.

  20. Solidarietà e protezione nel lavoro familiare anche dopo le recenti riforme

    Directory of Open Access Journals (Sweden)

    Lucia Venditti

    2012-01-01

    Full Text Available Riassunto – Lo studio esamina la disciplina del lavoro familiare attraverso una compiuta ricognizione delle fonti normative e delle inerenti tendenze interpretative. In particolare vengono considerati i profili dei confini dell’area identificata da tale disciplina ed i suoi riflessi in termini di definizione, anche giurisprudenziale, della prestazione lavorativa. L’indagine mostra che nel tempo le tutele si sono evolute nel senso di dare rilievo ai contenuti economici della collaborazione prestata dal familiare ed agli aspetti previdenziali.Abstract – The study deals with the regulation of “family work” by reconstructing the full array of relevant legislative sources, doctrine interpretations and jurisprudence trends. In particular, it focuses on the identification of the boundaries of the area of family work and on its consequences in terms of the definition of the relevant profile of the work relation with the family member, also considering what stated by the jurisprudence. The study shows that, overtime, applicable safeguards have evolved towards giving increasing relevance both to the economic content of the work relation and to the duly recognition of retirement insurance rights.

  1. Multi-tiered S-SOA, Parameter-Driven New Islamic Syariah Products of Holistic Islamic Banking System (HiCORE): Virtual Banking Environment

    Science.gov (United States)

    Halimah, B. Z.; Azlina, A.; Sembok, T. M.; Sufian, I.; Sharul Azman, M. N.; Azuraliza, A. B.; Zulaiha, A. O.; Nazlia, O.; Salwani, A.; Sanep, A.; Hailani, M. T.; Zaher, M. Z.; Azizah, J.; Nor Faezah, M. Y.; Choo, W. O.; Abdullah, Chew; Sopian, B.

    The Holistic Islamic Banking System (HiCORE), a banking system suitable for virtual banking environment, created based on universityindustry collaboration initiative between Universiti Kebangsaan Malaysia (UKM) and Fuziq Software Sdn Bhd. HiCORE was modeled on a multitiered Simple - Services Oriented Architecture (S-SOA), using the parameterbased semantic approach. HiCORE's existence is timely as the financial world is looking for a new approach to creating banking and financial products that are interest free or based on the Islamic Syariah principles and jurisprudence. An interest free banking system has currently caught the interest of bankers and financiers all over the world. HiCORE's Parameter-based module houses the Customer-information file (CIF), Deposit and Financing components. The Parameter based module represents the third tier of the multi-tiered Simple SOA approach. This paper highlights the multi-tiered parameter- driven approach to the creation of new Islamiic products based on the 'dalil' (Quran), 'syarat' (rules) and 'rukun' (procedures) as required by the syariah principles and jurisprudence reflected by the semantic ontology embedded in the parameter module of the system.

  2. Kitab Kuning: Warisan Keilmuan Ulama dan Kontekstualisasi Hukum Islam Nusantara

    Directory of Open Access Journals (Sweden)

    Damanhuri Damanhuri

    2017-12-01

    Full Text Available This article attempts to describe the existence of the Kitab Kuning (Arabic Book as a legacy of Islamic scholarship literacy which has an intellectual connection with earlier scholar and to see the contextualization of Islamic law in Nusantara. By Examining many library books related to the topic, including the work of Nusantara scholar, this article uses historical reviews and analyze it critically.The result shows that the existence of Kitab Kuning is not only to conserve and preserve the heritage of Islamic scholarship but also to be a signifier of one's intellectual capacity in understanding, interpreting and contextualizing the principles of Islamic law in order to respond social and cultural change. On the other hand, the contextualization of Islamic law in Nusantara is carried out in several ways; translating the works of jurisprudence, writing a commentary (syarḥ from a prominent jurisprudence and writing his own works by keep referring to the authoritative sources of the Islamic school of earlier scholarly work.

  3. Westen im Osten

    Directory of Open Access Journals (Sweden)

    Tomasz Giaro

    2003-01-01

    Full Text Available Western European legal historiography deplores the 19th century as the age of destruction of the Romanrooted ius commune by national codes. In reality the French code civil, the Austrian ABGB and the German Pandectist jurisprudence effected rather a relative unification of private law. In the same way, French constitutionalism as well as the administrative and court system spread throughout the West. This wave of law reform also rolled over Eastern Europe, until then a patchwork of customary law. In South-Eastern Europe, previously under Byzantine influence, the Serbian Civil Code of 1844 followed the Austrian ABGB, while the Rumanian Code of 1864 followed the French code civil. All over the region the liberal Belgian constitution of 1831 was very influential. Bohemia and Poland, both of them forming the eastern periphery of the Central-European empires, simply had their law imposed upon them. Hungary and Russia, on the other hand, modernized their law mainly by means of German Pandectist jurisprudence. In this way the patchwork of eastern customary law was harmonized. The further circulation of western legal models in the interwar period completed the relative unification of continental European law. The communist rule left these common legal bases of West and East to a large extent intact.

  4. Welfare migration? Free movement of EU citizens and access to social benefits

    Directory of Open Access Journals (Sweden)

    Michael Blauberger

    2014-12-01

    Full Text Available This article analyzes the political impact of the European Court of Justice’s (ECJ case law concerning the free movement of EU citizens and their cross-border access to social benefits. Public debates about ‘welfare migration’ or ‘social tourism’ often fluctuate between populist hysteria and outright denial, but they obscure the real political and legal issues at stake: that ECJ jurisprudence incrementally broadens EU citizens’ opportunities to claim social benefits abroad while narrowing member states’ scope to regulate and restrict access to national welfare systems. We argue that legal uncertainty challenges national administrations in terms of workload and rule-of-law standards, while domestic legislative reforms increasingly shift the burden of legal uncertainty to EU migrants by raising evidentiary requirements and threatening economically inactive EU citizens with expulsion. We illustrate this argument first with a brief overview of the EU’s legal framework, highlighting the ambiguity of core concepts from the Court’s case law, and then with empirical evidence from the UK, Germany and Austria, analyzing similar domestic responses to the ECJ’s jurisprudence. We conclude that EU citizenship law, while promising to build the union from below on the basis of equal legal entitlements, may, in fact, risk rousing further nationalism and decrease solidarity across the union.

  5. Sociology of Jurisprudential and Social Aspects of Addiction

    Directory of Open Access Journals (Sweden)

    Mohammad Barfi

    2003-05-01

    Full Text Available This research analyzes the issue from the jurisprudential and social aspects. The social aspect focuses on the existing viewpoints regarding the grounds for addiction and also looks into the jurisprudential decrees by Shiite and Sunni jurisprudents regarding opium, hashish and tobacco. In other words, the research focuses on the impacts of jurisprudential decrees on social issues and vice-versa. The research in order to offer strong proof for subjects under discussion conducts documental studies and extracts jurisprudential, historical and scientific texts. In all, this research promotes one’s knowledge about the chronology of drugs including opiates, hashish and tobacco, their side effects, reasons behind drug addiction and jurisprudential decrees in this regard from the viewpoint of jurisprudents. From the viewpoint of social philosophy it raises the thought that there is a dialectic relationship between the thought and the environment and necessitates the need for changes in jurisprudential thoughts. As far as is applied aspect is concerned, it offers solutions for preventing drug addiction.

  6. Striking a balance: conscientious objection and reproductive health care from the Colombian perspective.

    Science.gov (United States)

    Cabal, Luisa; Olaya, Monica Arango; Robledo, Valentina Montoya

    2014-12-11

    Conscientious Objection or conscientious refusal (CO) in access to reproductive health care is at the center of current legal debates worldwide. In countries such as the US and the UK, constitutional dilemmas surrounding CO in the context of reproductive health services reveal inadequate policy frameworks for balancing CO rights with women's rights to access contraception and abortion. The Colombian Constitutional Court's holistic jurisprudence regarding CO standards has applied international human rights norms so as to not only protect women's reproductive rights as fundamental rights, but to also introduce clear limits for the exercise of CO in health care settings. This paper reviews Latin American lines of regulation in Argentina, Uruguay, and Mexico City to argue that the Colombian Court's jurisprudence offers a strong guidance for future comprehensive policy approaches that aim to effectively balance tensions between CO and women's reproductive rights. Copyright © 2014 Cabal, Olaya, Robledo. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.

  7. THE LAWYER`S OPINION IN MODERN CIVIL LAW

    Directory of Open Access Journals (Sweden)

    Elena Evgenyevna Dubovaya

    2015-12-01

    Full Text Available Purpose to define value of freedom and fight of opinions, views and lawyer’s positions in development of science of civil law.Methodology theoretical analysis, inductive and deductive methods.Results It is established that fight of opinions, collision of various positions allows to understand more deeply the discussed problem, to come nearer to truth. So, free expression of opinions is the engine of development of civil law.Practical implications introduction in educational process on disciplines of civil jurisprudence, further research of fight of opinions in civil law.Tendencies of the present stage of development of legal system are characterized by aspiration to fix in the Russian legal system of the beginning of private law, where at the head of a corner – people as a legal entity. Opinions of lawyers on various legal problems, and the attitudes towards these opinions are subject to considerable dynamics. The centuries-old history of development of the right showed that fight of opinions, collision of various positions allows to understand more deeply the discussed problem, to come nearer to truth. The modern civil law widely uses a method of comparative jurisprudence, studying experience of the civilized countries which promoted in development of the civil legislation.

  8. Judicial process , Taxation and Competition : The Judged Thing and its termination in the New CPC

    Directory of Open Access Journals (Sweden)

    Rogerio Mollica

    2016-05-01

    Full Text Available The emphasis on binding legal precedents imposes the creation of efficient ways to review decisions that are res iudicata before the pacification of the jurisprudence by the Superior Courts. Being elapsed the term of two years for the rescinding action, there are doubts about the revision of those contrary to the jurisprudence decisions on the terms of article 505, I of the new Code of Civil Procedure (BCCP. Alternatively, the New Code of Civil Procedure aimed to solve the problem, with a new term to fill the Rescissory Action, in the case of res iudicata were contrary to the understanding of the Supreme Court. This problem is very current on the taxation realm with the edition of the Normative Opinion n. 492/2011 of the General Attorneys Office for Fiscal Affairs, which foresees the automatic set aside of the res iudicata that were contrary to the understanding of the Supreme Court. The revision of this res iudicata maybe also important to the maintenance of the competition of a free market, as if only a company possesses a decision that exempts it of the payment of a specific tax, this company will have a great advantage in face of its competitors and this would create disequilibrium in the market.

  9. Ethics education in chiropractic colleges: a North American survey.

    Science.gov (United States)

    Kinsinger, Stuart; Soave, David

    2012-07-01

    The purposes of this study were to survey Council on Chiropractic Education-accredited chiropractic colleges in North America and to describe curricular details on the teaching of bioethics. A custom-designed survey was sent to chiropractic colleges. Total number of contact hours, whether the ethics was a stand-alone course or integrated elsewhere, type of instructor, and if there was a required or recommended course text were queried. Of 19 surveys sent by mail, 15 surveys were returned. The average time in ethics instruction was 18.7 hours including lecture format, small group tutorial, and self-study. Chiropractic ethics education includes 8 areas of content (boundaries, law and jurisprudence, professionalism, basic ethic tenets/principles, ethical codes of conduct, prevention of financial and of sexual abuse, and resolving an ethical dilemma). Some colleges include content taught to students under the domain of law and jurisprudence. The results of this survey indicate that there are opportunities to further develop the educational ethics program at Council on Chiropractic Education-accredited colleges. All colleges currently offer bioethics teaching. An expanded role for this content is recommended so as to offer optimal benefit for students and practitioners. Copyright © 2012 National University of Health Sciences. Published by Mosby, Inc. All rights reserved.

  10. The Right to Know and the Right Not to Know Revisited: Part One.

    Science.gov (United States)

    Brownsword, Roger; Wale, Jeff

    2017-01-01

    Prompted by developments in human genetics, a recurrent bioethical question concerns a person's 'right to know' and 'right not to know' about genetic information held that is intrinsically related to or linked to them. In this paper, we will revisit the claimed rights in relation to two particular test cases. One concerns the rights of the 500,000 participants in UK Biobank (UKB) whose biosamples, already having been genotyped, will now be exome sequenced, and the other concerns the rights of pregnant women (and their children) who undergo non-invasive prenatal testing (NIPT)-a simple blood test that can reveal genetic information about both a foetus and its mother. This two-part paper is in four principal sections. First, we sketch the relevant features of our two test cases. Secondly, we consider the significance of recent legal jurisprudence in the UK and Singapore. Thirdly, we consider how, the jurisprudence apart, the claimed rights might be grounded. Fourthly, we consider the limits on the rights. We conclude with some short remarks about the kind of genetically aware society that we might want to be and how far there is still an opportunity meaningfully to debate the claimed rights.

  11. Positivisme dan Non-Positivisme dalam Jurisprudensi

    Directory of Open Access Journals (Sweden)

    Biyanto Biyanto

    2015-10-01

    Full Text Available This article discusses about trend positivism and non-positivism paradigm in jurisprudence. This topic is important because discourse in social philosophy always relies on the rationality of whole arguments. The argument of justification is preceded through deductive reasoning, starting from paradigmatic premise that will be used to justify conclusion. Paradigmatic premise is the basic principles of truth which is believed to be the real truth. The real truth derives from personal experience in reflecting facts found in daily activities. In contemporary context of jurisprudence, there is a fierce battle between legal profesionals with its positivist paradigm (legal or formal law approach and legal profesionals with its non-positivistic paradigm (legal morale substance approach. Many critics on positivism were responded by efforts to reform law through social movements. Social realist movement derives from diverse reality of socio-cultural configuration, within national life, will be significant when the movement is massively done, and supported by two pilars of civil society and political power. This opposition movement shall be continuously done to against the established side. The well established community has authority upon whole legal institution and usually will utilize all its power structures in order to maintain their interest.

  12. [Beginners' operations and medical specialist standards : Avoidance of criminal liability and civil liability].

    Science.gov (United States)

    Schneider, H

    2018-05-16

    In all phases, patients are entitled to receive medical treatment according to medical specialist standards. This does not mean that patients necessarily have to be treated by a medical specialist. Operations performed by "beginners", e. g. assistant physicians, are permitted. However, there are increased liability risks, both for the specialist and the assistant physician. Furthermore, there are risks of criminal responsibility for causing bodily harm by negligence or negligent manslaughter. This article portrays the requirements of civil liability and criminal responsibility concerning beginners' operations on the basis of cases and judgments of the Federal Court and the Higher Regional Courts in Germany. Additionally, the reception of the jurisprudence by the relevant legal literature will be discussed. Jurisprudence and legal literature categorize breaches of duty of care. Assistant physicians can be subject to contributory negligence liabilities, while specialists can bear liabilities for negligent selection, organization or supervision. Responsible specialist and assistant physicians can protect themselves (and the patient) and avoid legal risks by only performing operations adequate to their educational level or by delegating operations to beginners and ensuring intervention by a specialist by supervision of the operation which is suitable to the assistant physician's level of education.

  13. THE “JŪDŌ SUKEBEI” PHENOMENON: WHEN CROSSING THE LINE MERITS MORE THAN SHIDŌ [MINOR INFRINGEMENT] ― SEXUAL HARASSMENT AND INAPPROPRIATE BEHAVIOR IN JŪDŌ COACHES AND INSTRUCTORS

    Directory of Open Access Journals (Sweden)

    Carl De Crée

    2015-12-01

    Full Text Available The sport of jūdō was intended as an activity “for all”. Since in 1996 a major sex abuse scandal broke out that involved a Dutch top jūdō coach and several female elite athletes, international media have identified many more abuses. To date no scholarly studies exist that have examined the nature, extent, and consequences of these anomalies. We intend in this paper to review and analyze sexual abuses in jūdō. To do so we offer a descriptive jurisprudence overview of relevant court and disciplinary cases, followed by a qualitative-analytical approach looking at the potential factors that prompt jūdō-related bullying and sexual harassment. Sex offenders may be attracted to jūdō because of: 1. the extensive bodily contact during grappling, 2. the easy access to voyeuristic opportunities during contest weigh-ins and showering, 3. Jūdō’s authoritarian and hierarchical structure as basis for ‘grooming’, 4. lack of integration of jūdō’s core moral component in contemporary jūdō coach and instructor education, and 5. its increasing eroticization by elite jūdō athletes posing for nude calendars and media and by specialized pornographic jūdō manga and movies. Cultural conceptions and jurisprudence are factors that affect how people perceive the seriousness and how these offences are dealt with. A survey of 19 cases of abuse in jūdō worldwide shows that cultural conceptions and jurisprudence cause that such cases are handled in a very heterogeneous way by the law and by the jūdō governing bodies. Jūdō clubs and organizations overall suffer from a lack of expertise, intellectual insight, ethical objectivity, and solid procedures of fairness for both victim and accused, in this way often failing in both sufficiently protecting the weak from sex offenders, and in educating and reintegrating past offenders through jūdō activities that do not involve their victim target groups. Jūdō’s moral philosophy implicitly

  14. Advancing the sexual and reproductive health and human rights of women living with HIV: a review of UN, regional and national human rights norms and standards.

    Science.gov (United States)

    Khosla, Rajat; Van Belle, Nuna; Temmerman, Marleen

    2015-01-01

    The right to sexual and reproductive health (SRH) is an essential part of the right to health and is dependent upon substantive equality, including freedom from multiple and intersecting forms of discrimination that result in exclusion in both law and practice. Nonetheless, general and specific SRH needs of women living with HIV are often not adequately addressed. For example, services that women living with HIV need may not be available or may have multiple barriers, in particular stigma and discrimination. This study was conducted to review United Nations Human Rights Council, Treaty Monitoring Bodies and Special Rapporteur reports and regional and national mechanisms regarding SRH issues of women living with HIV. The objective is to assess areas of progress, as well as gaps, in relation to health and human rights considerations in the work of these normative bodies on health and human rights. The review was done using keywords of international, regional and national jurisprudence on findings covering the 2000 to 2014 period for documents in English; searches for the Inter-American Commission on Human Rights and national judgments were also conducted in Spanish. Jurisprudence of UN Treaty Monitoring Bodies, regional mechanisms and national bodies was considered in this regard. In total, 236 findings were identified using the search strategy, and of these 129 were selected for review based on the inclusion criteria. The results highlight that while jurisprudence from international, regional and national bodies reflects consideration of some health and human rights issues related to women living with HIV and SRH, the approach of these bodies has been largely ad hoc and lacks a systematic integration of human rights concerns of women living with HIV in relation to SRH. Most findings relate to non-discrimination, accessibility, informed decision-making and accountability. There are critical gaps on normative standards regarding the human rights of women living with

  15. From Law to Paradise: Confessional Catholicism and Legal Scholarship

    Directory of Open Access Journals (Sweden)

    Wim Decock

    2011-01-01

    Full Text Available This paper is a prolegomenon to further study of the intensified relationship between law and moral theology in early modern times. In a period characterized by a growing anxiety for the salvation of the soul (»Confessional Catholicism«, a vast literature for confessors, which became increasingly juridical in nature, saw the light between roughly 1550 and 1650. By focussing on some of the most important Jesuit canonists and moral theologians, this article first seeks to explain why jurisprudence became regarded as an indispensable tool to solve moral problems. While Romano-canon law showed its merits as an instrument of precision to come to grips with concrete qualms of conscience, with the passing of time it also became studied for its own sake. The second part of this paper, therefore, illustrates how the legal tradition, particularly with regard to the law of obligations, was reshaped in the treatises of the moral theologians.

  16. Exploring the theological foundation of Corporate Social Responsibility in Islam, Christianity and Judaism for Strengthening Compliance and Reporting: An Eclectic Approach

    Directory of Open Access Journals (Sweden)

    Lukman Raimi

    2013-12-01

    religions play direct and indirect role in corporate governance and people‘s lifestyle. This paper explores eclectic sources to provide answer to the questions: Does CSR have theological foundation in Islam Christianity and Judaism? Can religions strengthen CSR and fortify compliance and reporting? The authors sourced the required qualitative data from journal articles, Islamic jurisprudence, Judaic sources and Biblical texts as well as relevant online resources on the subject. The extractions from eclectic sources were subjected to content analysis from which conclusions on the two questions were established. The findings indicate that CSR has theological foundation in the three religions, and religious ethics and values could be potent drivers for strengthening CSR and reporting.

  17. Consentimento informado: o desafio médico-jurídico de nossos dias

    OpenAIRE

    Simões,Luiz Carlos Séllos

    2010-01-01

    OBJETIVOS: Avaliar a real importância de se obter o consentimento informado, em formulário apropriado, e o papel deste no desfecho de ações indenizatórias. MÉTODOS: A letra da lei brasileira e jurisprudência existente atualmente foram comparadas com o decisão judicial do Tribunal de Justiça do Estado do Rio de Janeiro, em 269 casos de ação civil indenizatória contra profissionais de saúde e hospitais. RESULTADOS: Favoráveis (absolvições) e desfavoráveis (condenações) foram comparadas e possív...

  18. A Straw Man Revisited

    DEFF Research Database (Denmark)

    Holtermann, Jakob v. H.

    2017-01-01

    . Ross on the other hand expressly acknowledged their existence and consistently observed both of them in his work. Setting the record straight not only casts much needed light on debates about internal and external aspects of social rules. It also gives us a privileged opportunity to redraw our map......H.L.A. Hart is said to have “famously demolished” Alf Ross’s Scandinavian version of Legal Realism with his celebrated introduction of a distinction between internal and external aspects of social rules. In this article, I argue that this received opinion is mistaken. Ross was not only perfectly...... by seeing the Legal Realists as precursors of philosophical Naturalism in jurisprudence or by exploring the prospects of a New Legal Realism....

  19. Impact Through Trust

    DEFF Research Database (Denmark)

    Mayoral, Juan A.

    of its rulings and legal mandates in national judiciaries and legal systems? This question is crucial if we understand that national courts are the key decentralised enforcers of the European Union (EU) law responsible for ensuring the effectiveness of EU law and the rulings and mandates imposed...... by the Court. EU scholars have already offered several legalist and institutionalist responses to why national courts participate in this process of legal integration in the EU and, most importantly, why the follow the mandates and rulings from the CJEU. This chapter innovates in this regard by introducing...... trust between judges as a new mechanism for enhancing the cooperation and compliance by national courts with the CJEU jurisprudence and EU legal mandates. The chapter describes the conditions under which national judges trust the CJEU to identify how the Court can promote trust in its role as a supreme...

  20. Public Undertakings and Imputability

    DEFF Research Database (Denmark)

    Ølykke, Grith Skovgaard

    2013-01-01

    In this article, the issue of impuability to the State of public undertakings’ decision-making is analysed and discussed in the context of the DSBFirst case. DSBFirst is owned by the independent public undertaking DSB and the private undertaking FirstGroup plc and won the contracts in the 2008...... Oeresund tender for the provision of passenger transport by railway. From the start, the services were provided at a loss, and in the end a part of DSBFirst was wound up. In order to frame the problems illustrated by this case, the jurisprudence-based imputability requirement in the definition of State aid...... in Article 107(1) TFEU is analysed. It is concluded that where the public undertaking transgresses the control system put in place by the State, conditions for imputability are not fulfilled, and it is argued that in the current state of law, there is no conditional link between the level of control...

  1. Libertad de expresión y el caso del lenguaje del odio. Una aproximación desde la perspectiva norteamericana y la perspectiva alemana

    Directory of Open Access Journals (Sweden)

    Oscar Pérez de la Fuente

    2010-11-01

    Abstract This article analyzes the conceptions on freedom of expression in the case of hate speech, focusing in some aspects of the North American perspective and in some aspects of the German perspective. The first model is based on negative freedom and it corresponds with the vision of marketplace of ideas that has elaborated the jurisprudence of the North American Supreme Court. This Court has given a priority role to the free speech that only must be limited in cases of clear and present danger or a threat of the breach of the peace. The second model is focused in the positive freedom, it gives a priority role to the human dignity in front of free speech. The Federal Constitutional Court has established that the conflict between fundamental rights must be considered according to the circumstances of the specific case.

  2. Public attitudes toward legally coerced biological treatments of criminals.

    Science.gov (United States)

    Berryessa, Colleen M; Chandler, Jennifer A; Reiner, Peter

    2016-12-01

    How does the public view the offer of a biological treatment in lieu of prison for criminal offenders? Using the contrastive vignette technique, we explored this issue, using mixed-methods analysis to measure concerns regarding changing the criminal's personality, the coercive nature of the offer, and the safety of the proposed treatment. Overall, we found that of the three variables, the safety of the pill had the strongest effect on public acceptance of a biological intervention. Indeed, it was notable that the public was relatively sanguine about coercive offers of biological agents, as well as changing the personality of criminals. While respondents did not fully endorse such coercive offers, neither were they outraged by the use of biological treatments of criminals in lieu of incarceration. These results are discussed in the context of the retributive and rehabilitative sentiments of the public, and legal jurisprudence in the arena of human rights law.

  3. Euthanasia, National and International Perspectives

    Directory of Open Access Journals (Sweden)

    Rustin-Petru Ciasc

    2013-08-01

    Full Text Available The topic of euthanasia can be defined and analyzed upon considering several perspectives, such as the legal, religious, historical, philosophical, medical or ethical ones. This article attempts to supply a brief presentation of these perspectives, indicating the existing trends and standpoints at world level in connection to perceptions regarding the phenomenon mentioned, exemplified by opinions described in the doctrine and relevant jurisprudence. At the same time, in this article I will try to indicate the weak spots of the Romanian legislation in the euthanasia area, upon supplying some proposals for legislative intervention. Concomitantly, it should appear the idea that not the right to die per se is to receive motivations and be included in the law, but the duty to live. This should be done first by drafting an adequate law to the terminal states that would guide their medical practice and comply with the world legislative trends.

  4. JURISPRUDENTIAL EXAMINATION REGARDING BIOLOGICAL SAMPLING IN THE CASE OF CONVICTED PERSONS

    Directory of Open Access Journals (Sweden)

    Gabriela\tNEMŢOI

    2015-12-01

    Full Text Available Objectives: The research devotes particular attention to the timing of biological sampling in the case of convicted persons. The main idea of the research is the factual situation regarding the criminal case law, which is not unified; problematic that prevents the formation of the National System of Judicial Genetic Data. Materials and Methods: The study focuses on evaluating the two opinions of jurisprudence on the implementation of the text of the law (Law no. 76/2008. Results: The carried research on different cases has shown that legal text is not mandatory, but its application is arbitrary, at the discretion of the court, but, nevertheless, the biological sampling in the case of convicted persons disregards the form for penalty. Conclusions: In the context of the creation of the National System of Judicial Genetic Data is a control condition on the typology of criminal profiling, we believe that biological sampling should be a priority to ensure safety of the individual.

  5. الرواية التاريخية في اسلام بعض الصحابة في كتاب الاخبار الطوال للطبراني

    Directory of Open Access Journals (Sweden)

    حسين محمد علي

    2017-06-01

    Full Text Available Proved the study Tabaraani grew up in many scientific family interest to speak His father of the owners Dhim Vsahbh with him, and departed, as the Tabaraani the people balanced and moderate everything that this word has meaning, he was not in the ruling State Service at the time shall be that of jurists and Uaazaa, and at the same time did not engage its military action shows such as the Alawites and the Kharijites movements that threatened the state or any entity system as it is and Islamic figure and scientific high, thereby contributing to the effective transfer of Islamic jurisprudence, Islamic and historical novel in the first century AH / seventh century AD.

  6. The Social Solidarity and the Meritorious Award of Special Pensions Premiais in Brazil

    Directory of Open Access Journals (Sweden)

    Milton Vasques Thibau de Almeida

    2016-06-01

    Full Text Available The Brazilian constitution contempt any different types of solidarity, some of them by the expressed form and others by the implicit form, have being awarded in this article the honor social solidarity, that gives legal fundaments to the special monthly and for all life pensions concessions to the ex-football players of the champion Brazilian Team on the World Championships of 1958, 1962 and 1970, the same that has been occurred with the ex-olimpic athletic Laís da Silva Souza. The Brazilian constitutional jurisprudence has been recognized the constitutionality of those laws that has given those rewarded pension concessions, but has been given to them the juridical nature of assistance benefit. Although a particular analyses of these laws that has been given those reward pensions concession revels the existence of supposes and requires that has been typical of the pension funds juridical nature.

  7. Dinamika Akad dalam Transaksi Ekonomi Syariah

    Directory of Open Access Journals (Sweden)

    Rahmawati Rahmawati

    2016-02-01

    Full Text Available Transaction is one of law products (sharia and jurisprudence that has a lot of development in accordance to human dynamics of the classical period to the present day. In the future, it will always envolve to follow the dynamics of economic system by maintaining the substance in the middle of economical global contentions. Transaction becomes one of Islamic and sharia (revelation product law to ensure human welfare. As a norm, transactions in Islamic finance or Islamic economics can be fused into the world economic system. This can be a filtering and balancing for the economical system that runs stable towards the benefit of all parties.DOI: 10.15408/aiq.v3i1.2207

  8. European Constitutional Identity “Inside Out”: Inherent Risks of the Pluralist Structure

    DEFF Research Database (Denmark)

    Cebulak, Pola Paula

    2012-01-01

    The jurisprudence of the CJEU and the national constitutional courts referring to the national constitutional identities of the Members States fits into the framework of constitutional pluralism as modus vivendi of the European legal order. This paper focuses in particular on the recent judgments...... the tensions inherent in the pluralist structure of the relationships between legal orders in the European arena. Constitutional identity is yet another concept used in this debate about the ultimate authority. Pluralism assumes that the courts will compete over the ultimate authority and will try to use...... for fruitful interaction of competing visions of Europe. Single criticisable judgments do not put in question the viability of the whole framework, but it is important to be aware of the systemic risks....

  9. On Some of the Aspects of the Linguistic Theory of Law

    Directory of Open Access Journals (Sweden)

    Andruszkiewicz Marta

    2016-09-01

    Full Text Available The article analyses the approach to the study of the sphere of language between theory of law and the philosophy of language. The aim of the paper is to study the range of applicability of philosophical and linguistic conceptions in theory of law. Law theory reflects certain movements and controversies that have been significant in linguistic sciences. The analyses, which, so far, have been conducted in theory of law, concentrated mainly on the use of the results of such achievements made by the representatives of the philosophy of language and linguistics as formal languages theories, transformational-generative theories, structuralism, formalism, pragmalinguistics. In this article, it is claimed that contemporary changes in the humanities justify the expansion of the range of jurisprudence integration to some other approaches, different from formalistic and pragmatic ones.

  10. ANALISIS FILOSOFIS TENTANG PETA KONSEPTUAL PENELITIAN HUKUM NORMATIF DAN PENELITIAN HUKUM SOSIOLOGIS

    Directory of Open Access Journals (Sweden)

    Zulfadli Barus

    2013-05-01

    Full Text Available Research is done by someone if there is any problem, a situation which reflects contradiction between the ideal fact and the real one. The elements which create the problem could be found by doing research. There are two kinds of research conceptual map in   law. They are: The rational-consistence-interpretative and the empirical-objective constructive. Legal research is based on rational-consistence-interpretative and socio-legal research is based on empirical-objective-constructive. These models are based on different concepts. The elements of legal research   are: rationalism, legal positivism, coherence theory, a priori, analysis, deduction, consistency, interpretative, library research, secondary data and qualitative. The elements of socio-legal research are empiricism, historical jurisprudence, correspondence theory, a posteriori, objectivity, constructive, synthesis, induction, field research, primary data and quantitative. Keywords: conceptual map, legal research, socio legal research

  11. ANALISIS FILOSOFIS TENTANG PETA KONSEPTUAL PENELITIAN HUKUM NORMATIF DAN PENELITIAN HUKUM SOSIOLOGIS

    Directory of Open Access Journals (Sweden)

    Zulfadli Barus

    2013-02-01

    Full Text Available Research is done by someone if there is any problem, a situation which reflects contradiction between the ideal fact and the real one. The elements which create the problem could be found by doing research. There are two kinds of research conceptual map in law. They are: The rational-consistence-interpretative and the empirical-objective constructive. Legal research is based on rational-consistence-interpretative and socio-legal research is based on empirical-objective-constructive. These models are based on different concepts. The elements of legal research are: rationalism, legal positivism, coherence theory, a priori, analysis, deduction, consistency, interpretative, library research, secondary data and qualitative. The elements of socio-legal research are empiricism, historical jurisprudence, correspondence theory, a posteriori, objectivity, constructive, synthesis, induction, field research, primary data and quantitative.

  12. Front-Stage Stars and Backstage Producers: The Role of Judges in Problem-Solving Courts1

    Science.gov (United States)

    Portillo, Shannon; Rudes, Danielle; Viglione, Jill; Nelson, Matthew; Taxman, Faye

    2012-01-01

    In problem-solving courts judges are no longer neutral arbitrators in adversarial justice processes. Instead, judges directly engage with court participants. The movement towards problem-solving court models emerges from a collaborative therapeutic jurisprudence framework. While most scholars argue judges are the central courtroom actors within problem-solving courts, we find judges are the stars front-stage, but play a more supporting role backstage. We use Goffman's front-stage-backstage framework to analyze 350 hours of ethnographic fieldwork within five problem-solving courts. Problem-solving courts are collaborative organizations with shifting leadership, based on forum. Understanding how the roles of courtroom workgroup actors adapt under the new court model is foundational for effective implementation of these justice processes. PMID:23397430

  13. Nasr Hamid Abu Zayd as a Modern Muslim Thinker

    Directory of Open Access Journals (Sweden)

    NUR ZAINATUL NADRA ZAINOL

    2014-06-01

    Full Text Available Nasr Hamid Abu Zayd is a thinker who has produced works in the fields of theology, philosophy, law, politics and humanities. Abu Zayd’s thought, partly on the Quran and its hermeneutics has stirred controversy in Egypt and the Muslim world. This research focuses on the controversy surrounding Nasr Hamid Abu Zayd which led to the declaration of his apostasy by the Supreme Court of Egypt in 1995, as well as his controversial thoughts on the Quran, its method of exegesis and certain fiqh (Islamic jurisprudence issues such as the hijab (veil and polygamy. This paper serves as a literature review which employs the content analysis as a methodology to elaborate on Abu Zayd’s controversial thoughts based on his books, as well as through the views of Muslim and Western scholars on those thoughts.

  14. "Our federalism" moves indoors.

    Science.gov (United States)

    Ruger, Theodore W

    2013-04-01

    A great deal of the US Supreme Court's federalism jurisprudence over the past two decades has focused on the outer limits of federal power, suggesting a mutually exclusive division of jurisdiction between the states and the federal government, where subjects are regulated by one sovereign or the other but not both. This is not an accurate picture of American governance as it has operated over the past half century - most important areas of American life are regulated concurrently by both the federal government and the states. The Supreme Court's June 2012 decision clearing the way for the Patient Protection and Affordable Care Act (PPACA) to move forward thus should not be regarded as an affront to state sovereignty but as a realistic embrace of state power in its active, modern form. The PPACA is infused with multiple major roles for the states, and as the statute goes into operation over the next few years, states retain, and are already exercising, substantial policy discretion.

  15. Front-Stage Stars and Backstage Producers: The Role of Judges in Problem-Solving Courts().

    Science.gov (United States)

    Portillo, Shannon; Rudes, Danielle; Viglione, Jill; Nelson, Matthew; Taxman, Faye

    2013-01-01

    In problem-solving courts judges are no longer neutral arbitrators in adversarial justice processes. Instead, judges directly engage with court participants. The movement towards problem-solving court models emerges from a collaborative therapeutic jurisprudence framework. While most scholars argue judges are the central courtroom actors within problem-solving courts, we find judges are the stars front-stage, but play a more supporting role backstage. We use Goffman's front-stage-backstage framework to analyze 350 hours of ethnographic fieldwork within five problem-solving courts. Problem-solving courts are collaborative organizations with shifting leadership, based on forum. Understanding how the roles of courtroom workgroup actors adapt under the new court model is foundational for effective implementation of these justice processes.

  16. Rekonstruksi Fiqh Pendarahan Pervaginam dengan Pendekatan Medis

    Directory of Open Access Journals (Sweden)

    Nur Lailatul Musyafa’ah

    2014-08-01

    Full Text Available This article discusses the reconstruction of fiqh (Islamic jurisprudence with regard to vaginal bleeding using a medical approach. The fiqh of vaginal bleeding discusses menstruation, postpartum, and istiḥâḍah. The discussion of fiqh is normative in nature, as it is based on the Qur’ân and Hadîth. Technological developments in medical science affect the deconstruction of fiqh pertaining to vaginal bleeding. As a resut, the opinions of previous jurists become less relevant, and the fiqh of vaginal bleeding needs to be reconstructed accordingly. This reconstruction can be conducted by using the empirical-normative approach to the study of fiqh with regard tovaginal bleeding, redefining the fiqh of vaginal bleeding, reinterpreting the argument of fiqh concerning vaginal bleeding, and making medical experts as partners in determining vaginal bleeding.

  17. A FORÇA NORMATIVA DA CONSTITUIÇÃO E A EFICÁCIA DAS NORMAS CONSTITUCIONAIS NO DIREITO BRASILEIRO

    OpenAIRE

    Dantas, Eduardo Sousa

    2010-01-01

    O princípio da força normativa da Constituição determina a pretensão de eficácia das normas constitucionais.  Inobstante, a distinção sobre os diversos tipos de eficácia das normas constitucionais impede a efetivação desse princípio e ocasiona crises constitucionais, gerando a necessidade de revisitação da delimitação desse princípio.  É o que vem se verificando na doutrina e jurisprudência brasileira.  Nos moldes em que vem sendo atualmente aplicado, o princípio da força normativa serve como...

  18. Time-capsule: Explorations of Concepts of Time and Law in Colonial New Zealand

    Directory of Open Access Journals (Sweden)

    Jonathan Barrett

    2010-05-01

    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.

  19. 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...

  20. Human rights advances in women's reproductive health in Africa.

    Science.gov (United States)

    Ngwena, Charles G; Brookman-Amissah, Eunice; Skuster, Patty

    2015-05-01

    The African Commission on Human and Peoples' Rights recently adopted General Comment No 2 to interpret provisions of Article 14 of the Protocol to the African Charter on the Rights Women. The provisions relate to women's rights to fertility control, contraception, family planning, information and education, and abortion. The present article highlights the General Comment's potential to promote women's sexual and reproductive rights in multiple ways. The General Comment's human rights value goes beyond providing states with guidance for framing their domestic laws, practices, and policies to comply with treaty obligations. General Comment No 2 is invaluable in educating all stakeholders-including healthcare providers, lawyers, policymakers, and judicial officers at the domestic level-about pertinent jurisprudence. Civil society and human rights advocates can use the General Comment to render the state accountable for failure to implement its treaty obligations. Copyright © 2015 International Federation of Gynecology and Obstetrics. Published by Elsevier Ireland Ltd. All rights reserved.

  1. Radioisotopes: problems of responsibility arising from medicine

    International Nuclear Information System (INIS)

    Dupon, Michel.

    1978-09-01

    Radioisotopes have brought about great progress in the battle against illnesses of mainly tumoral origin, whether in diagnosis (nuclear medicine) or in treatment (medical radiotherapy). They are important enough therefore to warrant investigation. Such a study is attempted here, with special emphasis, at a time when medical responsibility proceedings are being taken more and more often on the medicolegal problems arising from their medical use. It is hoped that this study on medical responsibility in the use of radioisotopes will have shown: that the use of radioisotopes for either diagnosis or therapy constitutes a major banch of medicine; that this importance implies an awareness by the practitioner of a vast responsibility, especially in law where legislation to ensure protection as strict as in the field of ionizing radiations is lacking. The civil responsibility of doctors who use radioisotopes remains to be defined, since for want of adequate jurisprudence we are reduced to hypotheses based on general principles [fr

  2. The Settlement of Litigations Arising from the Interpretation and Enforcement of Administrative Contracts

    Directory of Open Access Journals (Sweden)

    Vasilica NEGRUŢ

    2015-03-01

    Full Text Available Regarded nowadays as an instrument of strategy implementation of government policy and establishment mechanism of public administration, the administrative contract raises many debates on its applicable regime, but also on the jurisdiction, to solve litigations arising from their interpretation and execution. In this paper we proposed, based on the analysis of the laws in force, doctrine, jurisprudence, and previous research results related to the subject, using the comparative method, to clarify the mentioned issues. The conclusions of this paper will strengthen the practice on the referral of courts competent to solve litigations arising from the implementation of the administrative contracts in the context where the administrative contract has profound implications in the administrative, economic and social field.

  3. Special Issues Regarding The Family’s Residence

    Directory of Open Access Journals (Sweden)

    Ioana NICOLAE

    2014-11-01

    Full Text Available In the light of the current Civil Code, the family’s residence has a special legal regime, being properly protected. In this context, our article regarding of the main rules which ensure the protection of this residence is justified. As a result, out object of study is mainly directed at the special regulations regarding the hypothesis in which the residence is involved, as well as examining the legal rights of each spouse, even if only one of them is the holder of the lease contract or this contract is concluded before marriage. Such an endeavor is based on examining the provisions in this area and in specialty literature, as jurisprudence is now being clarified on this matter.

  4. El enriquecimiento sin causa y la acción in rem versó en materia de responsabilidad estatal por realización de obras, prestación de servicios y suministro de bienes sin contrato estatal

    Directory of Open Access Journals (Sweden)

    Jaime Luis Arias Fonseca

    2013-09-01

    Full Text Available This paper examines bibliographically and under a critical rationale method the principle of unjust enrichment and action de in rem verso especially for Government liability derived from provided services, asset provision, and the execution of construction works in favor of the Government without any existing formal contract or when there is a wrongful contract between the Government and the contractor, thus, causing impoverishment to the latter and a correlative unjust enrichment to the former. To that effect, a brief historical review of these principles is performed; their notions, requirements, and functional conditions established by jurisprudence are revised; and finally, the current stance of the Administrative Court on the implementation of the unjust enrichment thesis and the merits of the actio de in rem verso in terms of Government liability in the abovementioned events is pointed out.

  5. The Relevance of Bustani Judgment of the Administrative Tribunal of the ILO for the consecration of the Principle of Autonomy of International Organizations

    Directory of Open Access Journals (Sweden)

    Karine de Souza Silva

    2016-08-01

    Full Text Available http://dx.doi.org/10.5007/2177-7055.2016v37n73p227 The purpose of this article is to highlight the importance of the judgment “Bustani” delivered by the Administrative Tribunal of the International Labour Organization (ILOAT, to consolidate the principle of autonomy, considered as one of the constitutive elements of the legal personality of International Organizations. The first topic presents the Organization for the Prohibition of Chemical Weapons (OPCW and explains the case that culminated in the dismissal of the Director-General and led to the postulation of the demand before the ILOAT. The second topic shows the main outlines of the process, including the parties’ arguments, the legal basis and the decision of the Court. Finally, the article analyses the way of affirmation of autonomy as a raison d’être of International Organizations and presents the relevance of Bustani jurisprudence.

  6. European citizenship and active citizenship: an ever open debate (Italian original version

    Directory of Open Access Journals (Sweden)

    Lauretta D’Angelo

    2007-09-01

    Full Text Available In the course of the last decade the European debate on the concept of citizenship has shown that a definition of this concept in strictly legal and jurisprudence terms is reductive. Indeed a behavioral element is present, which goes beyond the defence and request for defence of rights and duties, but actually stresses the importance of acting within a community (or within several communities. A citizenship belonging to a given space/time context which, to be authentic, requires know-how and know-how-to-be that can be gained in different training opportunities (formal, informal etc. with various active learning methodologies and through experience. The SEDEC project aims to investigate which teaching methodologies and activities specifically developed for the teaching of sciences can be applied in other learning contexts, in order to sustain actions for developing an active citizenship.

  7. Política, constituição e justiça: os desafios para a consolidação das instituições democráticas

    Directory of Open Access Journals (Sweden)

    Lobato Anderson Orestes Cavalcante

    2001-01-01

    Full Text Available Os atores políticos encontram na Constituição os contornos institucionais para uma política democrática. Contudo, o texto constitucional não seria capaz de oferecer as condições necessárias à estabilidade governamental. A concretização de uma política de governo exigirá a reforma da Constituição, bem como uma jurisprudência constitucional uniforme; a Justiça Constitucional encontra-se, desse modo, no centro do debate político democrático. A tensão existente entre a vontade política do Governo e a vontade da Constituição somente poderia ser equilibrada pelo Judiciário, cuja instituição estaria vivenciando uma crise de legitimidade, organização e procedimento.

  8. Cyber stalking victimisation of women: Evaluating the effectiveness of current laws in India from restorative justice and therapeutic jurisprudential perspectives

    Directory of Open Access Journals (Sweden)

    Halder Debarati

    2015-01-01

    Full Text Available Victimisation of women through cyber stalking is one of the most serious crimes against women. Many countries including India have developed laws regulating cyber stalking. This article argues that since both, restorative justice (RJ and therapeutic jurisprudence (TJ are victim oriented, the issue of cyber stalking of women may be dealt with by RJ process and the laws in this regard must be analysed by the legal actors with a background in RJ and TJ philosophy. India had earlier taken up therapeutic punishment policy to enforce rights of the accused. But the modern principles of TJ have still not been considered in the RJ background in cyber stalking cases. This article therefore examines whether RJ and TJ principles can replace retributive principles for cyber stalking victimisation. It also examines the Indian cyber stalking law from RJ and TJ perspectives to assess its effectiveness for victims.

  9. Une progression sans révolution dans l’appréhension européenne des persécutions religieuses

    Directory of Open Access Journals (Sweden)

    Nicolas Hervieu

    2013-06-01

    SOMMAIRE: 1. Introduction - 2. Une issue retentissante: la concrétisation d’une protection conventionnelle contre les persécutions religieuses - 3. Un raisonnement parcellaire: les apories de l’analyse européenne à l’aune de la liberté de religion - 4. Conclusion - 5. Jurisprudence liée - 6. Appendice.  ABSTRACT: By banning deporting of a coptic christian by France to Egypt, where he might suffer persecution, European court of human rights has made an important contribution to the protection of foreigners against measures involving expulsion. The European solution is important because it deals with a complex, but crucial, concept: religious persecution. Unfortunatly, the opportunity offered by this case hase not been fully exploited. Freedom of religion was at the heart of this case, but European court did’nt use it enough.

  10. Una visión ponderada de la legislación laboral: comentarios al régimen MYPE y a la propuesta de «Ley de la Nueva Empresa»

    Directory of Open Access Journals (Sweden)

    Christian Sánchez

    2012-12-01

    Full Text Available A weighted view of labor law: commentaries on the MSE regime and the proposal «Law of New Enterprise»The present article evaluates constitutional character of the regime of Micro and Small Enterprises (MSE and the legislative proposal of «Law of New Enterprise» from the jurisprudence of the Constitutional Court. With this purpose it starts with analyzing own characters of the right to equality as a classical liberal right that is based on social rights as the right to work. Finally, the article seeks to dispel doubt of whether those regimes, MSE and the Law of New Enterprise, they obey to a policy of promotion of employment or rather they introduce a differentiated treatment without objective basis and therefore unconstitutional.

  11. 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.

  12. The local power supply in the German Federal Republic

    International Nuclear Information System (INIS)

    Tettinger, P.J.

    1992-01-01

    The article first examines the contours of the foundations of the communes' competence to act autonomously, which have been laid by constitutional jurisdiction and jurisprudence. Next, the limits that constitutional law sets to the communes' competence in the field of energy politics are scrutinized. These limits firstly result from the confinement of the communal administrative unions' competence to a local sphere, and secondly from the additional constraints of Federal law, particularly the Law Concerning the Power Economy, and of the law of the Laender, here primarily communal commercial law. It is concluded that the limits to the communal administrative unions' competence must be strictly observed and the constraints imposed by power law and communal commercial law respected. Under the present constitutional law the guarantee of communal autonomy at least provides no legal means of defying decisions and directives under the laws of the Federation or the Laender that apply supraregionally. (orig./HSCH) [de

  13. Preventive detention of sex offenders: the American experience versus international human rights norms.

    Science.gov (United States)

    Janus, Eric S

    2013-01-01

    Nearly two decades after the birth of American Sexually Violent Predator (SVP) laws and the tolerant review of their legitimacy by American courts, European courts and international bodies are beginning to develop a jurisprudence of their own with regard to preventive detention. Applying international human rights norms, these bodies have been significantly less tolerant of preventive detention, looking not only at their design but also at their implementation. Simultaneously, American courts are showing the beginnings of a second look at SVP laws, inspired and informed not by promises about the future implementation of newly passed SVP laws, but rather by the sorry record of two decades of implementation. This article examines an American SVP scheme as it has been implemented over 20 years, contrasts the international perspective, and offers some speculation about the path of reform for American SVP schemes. Copyright © 2013 John Wiley & Sons, Ltd.

  14. The human rights responsibilities of multinational tobacco companies

    Science.gov (United States)

    Crow, M

    2005-01-01

    This article explores various strategies which could be used to hold the tobacco industry accountable for human rights violations precipitated by its conduct. First, a brief overview of the international human rights regime and the tobacco related jurisprudence issued by human rights treaty bodies is provided. The article then explains how tobacco control advocates could promote more systematic consideration of governments' tobacco related human rights violations by reconceptualising the Framework Convention on Tobacco Control in the language of rights. The feasibility of using the existing human rights framework to target the tobacco industry directly is analysed with the conclusion that this approach has serious limitations. Emerging human rights norms, which have greater potential to affect the industry's conduct, are presented. Finally, given the questionable authoritativeness of these norms, alternative ways that they could be employed to hold tobacco companies accountable for the rights related consequences of their activities are proposed. PMID:16046696

  15. Information report made on the behalf of the European Affairs Commission on European policy for nuclear safety; Rapport d'information fait au nom de la commission des affaires europeennes (1) sur la politique europeenne de surete nucleaire

    Energy Technology Data Exchange (ETDEWEB)

    Bizet, J.; Sutour, S.

    2011-05-15

    This report aims at defining some perspectives for the evolution of the European general legal framework for nuclear safety. The authors first outline the difficulty for a European policy to emerge. They explain this statement by the importance of the current policy of national states, of their operators and of their national regulation authorities. They evoke the few elements of this legal framework (EURATOM Treaty, jurisprudence) but outline the strong cooperation between national authorities. Then, they discuss some progresses which have been noticed during the past two years (the 'safety' directive, a proposition for a directive on the management of used fuel and radioactive wastes, and the recent works by WENRA), and discuss the consequences of the accident in Fukushima. Propositions are made, notably concerning the support to the 'waste' directive, the perpetuation of strength tests, the rewriting of the 'safety' directive of June 2009

  16. Waste law. November 2013 - September 2014

    International Nuclear Information System (INIS)

    Lanoy, Laurence

    2014-01-01

    The author comments the main evolution noticed regarding legal aspects (laws, decrees, jurisprudence, and so on) about wastes between November 2013 and September 2014. The main events have been the adoption of the bill on social and solidarity economy which contained some measures related to waste prevention, and the transposition of a European directive related to waste electric and electronic equipment. The author addresses the different concerned domains: the modalities of waste management (prescriptions applied to installations receiving wastes, the waste status, the case of radioactive wastes, the case of waste electronic and electric equipment, waste cross-border transfers, general orientations of the French and European waste laws), and the responsibility for wastes (administrative responsibility, waste related taxation, producer responsibility)

  17. Information report made on the behalf of the European Affairs Commission on European policy for nuclear safety

    International Nuclear Information System (INIS)

    Bizet, J.; Sutour, S.

    2011-05-01

    This report aims at defining some perspectives for the evolution of the European general legal framework for nuclear safety. The authors first outline the difficulty for a European policy to emerge. They explain this statement by the importance of the current policy of national states, of their operators and of their national regulation authorities. They evoke the few elements of this legal framework (EURATOM Treaty, jurisprudence) but outline the strong cooperation between national authorities. Then, they discuss some progresses which have been noticed during the past two years (the 'safety' directive, a proposition for a directive on the management of used fuel and radioactive wastes, and the recent works by WENRA), and discuss the consequences of the accident in Fukushima. Propositions are made, notably concerning the support to the 'waste' directive, the perpetuation of strength tests, the rewriting of the 'safety' directive of June 2009

  18. Tobacco industry use of judicial seminars to influence rulings in products liability litigation

    Science.gov (United States)

    Friedman, L C

    2006-01-01

    Objectives This paper examines the tobacco industry's efforts to influence litigation by sponsoring judicial seminars. Methods Thousands of internal tobacco documents were examined, including memos, reports, presentations, and newsletters. Connections to outside organisations were corroborated by examining tobacco industry financial records, budgets, and letters pledging funds. Facts about outside organisations were triangulated through examining their websites and publicly‐filed financial records, and verifying facts through their representatives' statements in newspaper and law review articles. Results There are direct financial ties between the tobacco industry and groups that organise judicial seminars in an effort to influence jurisprudence, and judges who attend these seminars may be breaching judicial ethics either by not inquiring about the source of funding or by ignoring funding by potential litigants. Conclusions The tobacco industry's attempts to clandestinely influence judges' decisions in cases to which they are a party endangers the integrity of the judiciary. PMID:16565460

  19. 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...

  20. Environmental law - the question of a systematization and codification of environmental law in Austria

    International Nuclear Information System (INIS)

    Chiu Yen-Lin, A.

    2000-04-01

    In the last three decades environmental law has become an important part of jurisprudence. As a cross-section subject environmental law refers to a number of different legal subjects, making a clear distinguishing impossible. The thesis has the purpose to explain the concept of environmental law and to systematize the field of environmental law (also with regard to a general codification). Beginning with a summary of environmental law definitions and following a review of the international and national legal development there is an overall view about the sources, the various sections, the principles, the instruments and the implementing institutions of environmental law. The question of a complete codification of environmental law in a statute book is of special interest, as there are also international endeavors going in this direction. (author)