Search results for: discretion of court

Authors: Behnam Habibi Dargah

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The economics of cost-benefit theory seeks to monitor claims and determine their final price. The cost of litigation is important because it is a measure of the efficiency of the justice system. From an economic point of view, the cost of litigation is considered to be the point of equilibrium of litigation, whereby litigation is regarded as a high-risk investment and is initiated when the costs are less than the probable and expected benefits. Costs are economically separated into private and social costs. Private cost includes material (direct and indirect) and spiritual costs. The social costs of litigation are also subsidized-centric due to the public and governmental nature of litigation and cover both types of bureaucratic bureaucracy and the costs of judicial misconduct. Macroeconomic policy in the economics of justice is the reverse engineering of controlling the social costs of litigation by employing selective litigation and working on the judicial culture to achieve rationality in the monopoly system. Procedures for controlling and managing court costs are also circumscribed to economic patterns in the field. Rational cost allocation model and cost transfer model. The rational allocation model deals with cost-tolerance systems, and the transfer model also considers three models of transferability, including legal, judicial and contractual transferability, which will be described and explored in the present article in a comparative manner.

Keywords: cost of litigation, economics of litigation, private cost, social cost, cost of litigation

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Authors: O. Abiodun Adeyinka, B. Adeyemo Adesesan

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The forensic use of handwriting depends on the analysis, comparison, and evaluation decisions made by forensic document examiners. When using biometric technology in forensic applications, it is necessary to compute Likelihood Ratio (LR) for quantifying strength of evidence under two competing hypotheses, namely the prosecution and the defense hypotheses wherein a set of assumptions and methods for a given data set will be made. It is therefore important to know how repeatable and reproducible our estimated LR is. This paper evaluated the accuracy and reproducibility of examiners' decisions. Confidence interval for the estimated LR were presented so as not get an incorrect estimate that will be used to deliver wrong judgment in the court of Law. The estimate of LR is fundamentally a Bayesian concept and we used two LR estimators, namely Logistic Regression (LoR) and Kernel Density Estimator (KDE) for this paper. The repeatability evaluation was carried out by retesting the initial experiment after an interval of six months to observe whether examiners would repeat their decisions for the estimated LR. The experimental results, which are based on handwriting dataset, show that LR has different confidence intervals which therefore implies that LR cannot be estimated with the same certainty everywhere. Though the LoR performed better than the KDE when tested using the same dataset, the two LR estimators investigated showed a consistent region in which LR value can be estimated confidently. These two findings advance our understanding of LR when used in computing the strength of evidence in handwriting using forensics.

Keywords: confidence interval, handwriting, kernel density estimator, KDE, logistic regression LoR, repeatability, reproducibility

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Authors: Daisyree S. Arrieta

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The purpose of this study was to assess the mediation process applied on community-based disputes in the selected barangays of Batangas City, namely: Barangay Sta. Rita Karsada, Barangay Bolbok, and Barangay Alangilan. The researcher initially speculated that the required procedures under Republic Act No. 7160 were not religiously followed and satisfied by the Lupong Tagapamayapa members in most of the barangays in the subject locality and this prompted the researcher to conduct an investigation about this research topic. In this study, the subject barangays and their Lupon members still resorted to mediation processes to amicably settle conflicts among community members. It can also be appreciated among the Lupon Tagapamayapa members that they are aware of the purpose and processes required in the mediation of cases brought before them. However, the manner in which they conduct this mediation processes seems to be dependent on the general characteristics of their respective barangays and of the people situated therein. It also very noticeable that the strategies applied by the Lupon members on these cases depend on the ways and means the parties in dispute may arrive into agreements and conciliations. It is concluded by the researcher that the Lupong Tagapamayapa members in Barangay Sta. Rita Karsada, Barangay Bolbok, and Barangay Alangilan are aware and are applying the objectives and procedures of mediation. Also, the success and failure of the mediation processes applied by the Lupong Tagapamayapa members of the subject barangays on community-based disputes brought before them are generally attributed on the attitude and perspective of the parties in dispute towards the entire process of mediation and not on the capacity or capability of the Lupon members to subject them into amicable settlements. In view of the above, the researcher humbly recommends the following: (1) that the composition of the Lupong Tagapamayapa should include individuals from various sectors of the barangay; (2) that the Lupong Tagapamayapa members should undergo various trainings that may enhance their capability to mediate any type of community-based disputes at the expense of the barangay fund or budget; (3) that the Punong Barangay and the Sangguniang Pambarangay, in their own discretion, should allocate budget that will consistently provide regular honoraria for the Lupong Tagapamayapa members; (4) that the Punong Barangay and the Sangguniang Pambarangay should provide an ideal venue for the hearing of community-based disputes; (5) that the City/ Municipal Governments should allocate necessary financial assistance to the barangays under their jurisdiction in honing eligible Lupong Tagapamayapa members; and (6) that the Punong Barangay and other officials should initiate series of information campaigns for their constituents to be informed on the objectives, advantages, and procedures of mediation.

Keywords: amicable settlement, community-based disputes, dispute resolution, mediation

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Authors: Dalia Perkumiene

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The process of globalization has several unforeseen negative effects on the quality of the environment, including increased pollution, climate change, and the depletion and destruction of natural resources. The impact of these processes makes it difficult to guarantee citizens' rights to a clean environment, and complex legal solutions are needed to implement this right. In order to implement human rights in a clean and safe environment, international legal documents and court rulings are analyzed. It is important to find a balance between the legal context: the right to a clean environment and environmental challenges such as climate change and global warming. Research Methods: The following methods were used in this study: analytical, analysis, and synthesis of scientific literature and legal documents, comparative analysis of legal acts, and generalization. Major Findings: It is difficult to implement the right to a clean, safe and sustainable environment. The successful implementation of this right depends on the application of various complex ideas and rational, not only legal solutions. Legislative measures aim to maximize the implementation of citizens' rights in the face of climate change and other environmental challenges. This area remains problematic, especially in international law. Concluding Statement: The right to a clean environment should allow a person to live in a harmonious system, where environmental factors do not pose a risk to human health and well-being.

Keywords: clean and safe and clean environmen, environmen, persons’ rights, right to a clean and safe and clean environment

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Authors: Hamdan Arief Hanif, Rahmat Sidiq

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Indonesia is a country of law, the legal system adopted by Indonesia is a civil law system. A major feature of the civil law is the codified legislation. Meanwhile the majority of society Indonesia are Muslims, whilst Islamic law itself having the sources written in Qur'an, Sunnah and the opinion of Muslim scholars, generally not codified in book form of legislation that is easy on the set as a reference. in Indonesia, many scholars have different opinions in decisions so that there is no legal certainty in Muslim civil cases, so the need for legal codification, which, as the source of the judges in deciding a case, especially a case in religious courts. This paper raised the topic of discussion which offers a solution to the application of the codification of the Islamic Law which became the core resources in delivering a verdict against Islamic civil related issue; codification usually called a compilation of Islamic Law. Compilation of Islamic Law is highly recommended as a core reference for the judges in religious courts in Indonesia. This compilation which includes a collection of large number of opinions scholars (book of fiqh) that existed previously and are ripened in deduce in order to unify the existing differences. This paper also discusses how the early formation of the compilation and as the right solution in order to create legal certainty and justice especially for the muslim community in Indonesia.

Keywords: Islamic law, compilation, law applied core, religious court

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Authors: Kahandawala Arachchige Thani Chathurika Kahandawala

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This research is attempted to analyse, Sri Lanka’s current situation regarding the recognition and enforcement of international commercial arbitration awards. Sri Lanka has been involved with commercial arbitration for a long time period. But there are good and bad legal practices in place in proceedings in Sri Lanka legal system. The common perception and reality of Sri Lanka’s arbitration law and practices regarding recognition and enforcement of international arbitral awards is far behind the international standards. Therefore arbitration as a dispute resolution method has become a time-consuming and costly method in Sri Lanka. This research is employed with the qualitative method based on both primary and secondary resources. This carried out the comparative analysis of recognition and enforcement in international arbitration laws established jurisdiction in Singapore and the United Kingdom, which are known as best counties as a seat of arbitration in Asia and Europe. International conventions, act and all the legal proceedings regarding recognition and enforcement of an international arbitral award in Sri Lanka are going to be discussed in the research. In the Jurisdiction of Sri Lanka, critically need to value an international arbitral award in the domestic legal system. Therefore an award has to be recognised in Sri Lanka. Otherwise, it doesn’t have any value. After recognizing it, court can enforce it. This research intends to provide a comparative analysis to overcome the drawbacks.

Keywords: arbitration, alternative dispute method, recognition and enforcement, foreign arbitral awards, Sri Lankan legal system, arbitral award in Singapore

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Authors: Yuval Sinai

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As part of the historical, religious and cultural heritage of the Jewish people, Jewish law is part of the legal system in Israel, which is a Jewish and democratic state. The proper degree of use of Jewish law in judicial decisions is an issue that crops up in Israeli law from time to time. This was a burning question in the 1980s in the wake of the enactment of the Foundations of Law Act 1980, which declared Jewish heritage a supplementary legal method to Israeli law. The enactment of the Basic Law: Human Dignity and Liberty 1992, which decreed that the basic Israeli legal principles must be interpreted in light of the values of a Jewish and democratic state, marks a significant change in the impact of Judaism in the law created and applied by the courts. Both of these legislative developments revived the initiative to grant a central status to Jewish law within the state law. How should Jewish law be applied in Israel’s secular courts? This is not a simple question. It is not merely a question of identifying the relevant rule of Jewish law or tracing its development from the Talmud to modern times. Nor is it the same as asking how a rabbinic court would handle the issue. It is a matter of delicate judgment to distill out of the often conflicting Jewish law sources a rule that will fit into the existing framework of Israeli law so as to advance a policy that will best promote the interests of Israel’s society. We shall point out the occasional tensions between Jewish religious law and secular law, and introduce opinions as to how reconciliation of the two can best be achieved in light of Jewish legal tradition and in light of the reality in the modern State of Israel.

Keywords: law and religion, israel, jewish law, law and society

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Authors: Yuliya Radanova, Agnė Tvaronavičienė

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With the growing trend for mandating parties of family conflicts to out-of-court processes, the adopted statutory regulations often remain silent on the way the voice of the child is integrated into the procedure. Convention on the Rights of the Child (Art. 12) clearly states the obligation to assure to the child who can form his or her own views the right to express those views freely in all matters affecting him. This article seeks to explore the way children participate in the mandatory mediation schemes applicable to family disputes in the European Union. A review of scientific literature and empirical data has been conducted on those EU Member States that coerce parties to family mediation to establish that different models of practice are deployed, and there is a lack of synchronicity on how children’s role in mediation is viewed. Child-inclusive mediation processes are deemed to produce sustainable results over time but necessitate professional qualifications and skills for the purpose of mediators to accommodate that such discussions are aligned with the best interest of the child. However, there is no unanimous guidance, standards or protocols on the peculiar characteristics and manner through which children are involved in mediation. Herewith, it is suggested that the lack of such rigorous approaches and coherence in an ever-changing mediation setting transitioning towards mandatory mediation models jeopardizes the importance of children’s voices in the process. Thus, it is suggested that there is a need to consider the adoption of uniform guidelines on the specific role children have in mediation, particularly in its mandatory models.

Keywords: family mediation, child involvement, mandatory mediation, child-inclusive, child-focused

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Authors: Neil Bar, Andrew Heweston

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Probability of failure (PF) often appears alongside factor of safety (FS) in design acceptance criteria for rock slope, underground excavation and open pit mine designs. However, the design acceptance criteria generally provide no guidance relating to how PF should be calculated for homogeneous and heterogeneous rock masses, or what qualifies a ‘reasonable’ PF assessment for a given slope design. Observational and kinematic methods were widely used in the 1990s until advances in computing permitted the routine use of numerical modelling. In the 2000s and early 2010s, PF in numerical models was generally calculated using the point estimate method. More recently, some limit equilibrium analysis software offer statistical parameter inputs along with Monte-Carlo or Latin-Hypercube sampling methods to automatically calculate PF. Factors including rock type and density, weathering and alteration, intact rock strength, rock mass quality and shear strength, the location and orientation of geologic structure, shear strength of geologic structure and groundwater pore pressure influence the stability of rock slopes. Significant engineering and geological judgment, interpretation and data interpolation is usually applied in determining these factors and amalgamating them into a geotechnical model which can then be analysed. Most factors are estimated ‘approximately’ or with allowances for some variability rather than ‘exactly’. When it comes to numerical modelling, some of these factors are then treated deterministically (i.e. as exact values), while others have probabilistic inputs based on the user’s discretion and understanding of the problem being analysed. This paper discusses the importance of understanding the key aspects of slope design for homogeneous and heterogeneous rock masses and how they can be translated into reasonable PF assessments where the data permits. A case study from a large open pit gold mine in a complex geological setting in Western Australia is presented to illustrate how PF can be calculated using different methods and obtain markedly different results. Ultimately sound engineering judgement and logic is often required to decipher the true meaning and significance (if any) of some PF results.

Keywords: probability of failure, point estimate method, Monte-Carlo simulations, sensitivity analysis, slope stability

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Authors: Michael Lousis

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This research study is concerned with learner’s errors on Arithmetic and Algebra. The data resulted from a broader international comparative research program called Kassel Project. However, its conceptualisation differed from and contrasted with that of the main program, which was mostly based on socio-demographic data. The way in which the research study was conducted, was not dependent on the researcher’s discretion, but was absolutely dictated by the nature of the problem under investigation. This is because the phenomenon of learners’ mathematical errors is due neither to the intentions of learners nor to institutional processes, rules and norms, nor to the educators’ intentions and goals; but rather to the way certain information is presented to learners and how their cognitive apparatus processes this information. Several approaches for the study of learners’ errors have been developed from the beginning of the 20th century, encompassing different belief systems. These approaches were based on the behaviourist theory, on the Piagetian- constructivist research framework, the perspective that followed the philosophy of science and the information-processing paradigm. The researcher of the present study was forced to disclose the learners’ course of thinking that led them in specific observable actions with the result of showing particular errors in specific problems, rather than analysing scripts with the students’ thoughts presented in a written form. This, in turn, entailed that the choice of methods would have to be appropriate and conducive to seeing and realising the learners’ errors from the perspective of the participants in the investigation. This particular fact determined important decisions to be made concerning the selection of an appropriate framework for analysing the mathematical errors and giving explanations. Thus the rejection of the belief systems concerning behaviourism, the Piagetian-constructivist, and philosophy of science perspectives took place, and the information-processing paradigm in conjunction with the philosophy of mind were adopted as a general account for the elaboration of data. This paper explains why these decisions were appropriate and beneficial for conducting the present study and for the establishment of the ensued thesis. Additionally, the reasons for the adoption of the information-processing paradigm in conjunction with the philosophy of mind give sound and legitimate bases for the development of future studies concerning mathematical error analysis are explained.

Keywords: advantages-disadvantages of theoretical prospects, behavioral prospect, critical evaluation of theoretical prospects, error analysis, information-processing paradigm, opting for the appropriate approach, philosophy of science prospect, Piagetian-constructivist research frameworks, review of research in mathematical errors

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Authors: Fines Fatimah, SH. MH.

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Indonesia is one of the countries that has ratified the UNCRPD (United Nations Convention on the Rights of Persons with Disabilities). The ratification of this convention brings consequences on the adjustment of national legislation with the UNCRPD convention, where this ratification at the same time is a measure in the eyes of the international community that a state party could be consistent with the issues and problems of disability. Persons with disabilities often have little access to justice when they are forced to deal with the criminal justice system. Pursuit of justice through litigation are often not in their favor, therefore without any awareness of law enforcement/awareness of disability will further complicate access to justice for persons with disabilities. Under Article 13 of the UNCRPD, it appeared that the convention requires ratifying states to guarantee equal opportunity and treatment in justice for persons with disabilities. The States should also ensure that any judicial rules must be adapted to the circumstances of persons with disabilities so that people with disabilities can fully participate in all stages of the trial court and, for example, as a witness. Finally, the state must provide training to understand these persons with disabilities (for those who work in the judiciary institution such as police or prison officials). Further, this paper aims to describe problem faced by persons with intellectual disabilities to access justice in Indonesian Criminal Justice System. This paper tries to find and propose the alternative solutions to promote the quality of law enforcement in Indonesia, especially for persons with intellectual disabilities.

Keywords: access to justice, Indonesian criminal justice system, intellectual disability, ratifying states

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Authors: Ralph Barnes

Abstract:

The internationalization and globalization of education are now a huge, multi-million dollar industry. The movement of international students across the globe has provided a rich vein of revenue for universities and institutions of higher learning to exploit and harvest. A concerted effort has been made by universities worldwide to court students from overseas, with some countries relying up to one-third of student fees, coming from international students. Australian universities and English Language Centres are coming under increased government scrutiny in respect to such areas as the academic progression of international students, management and understanding of student visa requirements and the design of higher education courses and effective assessment regimes. As such, universities and other higher education institutions are restructuring themselves more as service providers rather than as strictly education providers. In this paper, the high-touch, tailored academic model currently followed by some Australian educational institutions to support international students, is examined and challenged. Academic support services offered to international students need to be coordinated, sustained and reviewed regularly, in order to assess their effectiveness. Maintaining the delivery of high-quality educational programs and learning outcomes for this high income-generating student cohort is vital, in order to continue the successful academic and social engagement by international students across the Australian university and higher education landscape.

Keywords: ESL, engagement, tertiary, learning

Procedia PDF Downloads 178

Authors: Yuval Sinai

Abstract:

As part of the historical, religious and cultural heritage of the Jewish people, Jewish law is part of the legal system in Israel, which is a Jewish and democratic state. The proper degree of use of Jewish law in judicial decisions is an issue that crops up in Israeli law from time to time. This was a burning question in the 1980s in the wake of the enactment of the Foundations of Law Act 1980, which declared Jewish heritage a supplementary legal method to Israeli law. The enactment of the Basic Law: Human Dignity and Liberty 1992, which decreed that the basic Israeli legal principles must be interpreted in light of the values of a Jewish and democratic state, marks a significant change in the impact of Judaism in the law created and applied by the courts. Both of these legislative developments revived the initiative to grant a central status to Jewish law within the state law. How should Jewish law be applied in Israel’s secular courts? This is not a simple question. It is not merely a question of identifying the relevant rule of Jewish law or tracing its development from the Talmud to modern times. Nor is it the same as asking how a rabbinic court would handle the issue. It is a matter of delicate judgment to distill out of the often conflicting Jewish law sources a rule that will fit into the existing framework of Israeli law so as to advance a policy that will best promote the interests of Israel’s society. We shall point out the occasional tensions between Jewish religious law and secular law, and introduce opinions as to how reconciliation of the two can best be achieved in light of Jewish legal tradition and in light of the reality in the modern State of Israel.

Keywords: law and politics, law and religion, comparative law, law and society

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Authors: Desiree David

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South Africa has one of the highest rates of HIV infection in the world, with a sizable percentage of the population living with HIV. A substantial number of new infections occur as a result of sexual activity. South African courts have awarded civil claims for damages as a result of the transmission of HIV as a result of non-disclosure by the HIV-positive sexual partner, and more recently, the criminal courts have also convicted and sentenced individuals accused of infecting others as a result of sexual activity. This paper will analyse some case law from South African court cases that have dealt with criminal convictions for the transmission of HIV, and the potential for more widespread prosecutions of these cases. It will also address the desirability of this trend in light of the social public health system, as well as human rights concerns surrounding this highly contentious issue. This will be done by considering some applicable provisions of the Bill of Rights such as the right to privacy and equality, as espoused in the Constitution of the Republic of South Africa. The paper further addresses the experience of other jurisdictions such as Canada, Singapore, Lesotho and Uganda, by analyzing case law, and consider the pitfalls of criminalizing a wide spectrum of sexual conduct that could result in the transmission of HIV. The paper concludes with a proposal that the issue of criminalizing the transmission of HIV cannot be addressed by the criminal justice system alone, as to do so could result in harsh consequences for those living with HIV. As such individuals may be burdened with additional responsibilities that could potentially impact on the rights of the individual. This may ultimately result in injustice for those living with HIV.

Keywords: criminalization, HIV, human rights, South Africa

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Authors: Piedad Lucia Bolivar Goez, Daniel Ignacio Garzon Luna, Maria Camila Balcero Angel, Sara Carolina Martinez Roman, Daniela Natalia Polo Rivas, Sandra Liliana Rocha Guitierrez

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This article provides a critical analysis on the conception of disorders of sexual development (DSDs) within the bioethics framework. By means of analytical thought, the objective is to approach topics such as the rediscovery of the body, the reinvention of sexuality and link them to the liability that health personnel have to inform people about the options they have to decide over their health and body. The medicalization of sexed bodies in both psychosocial and anatomo-morpho-physiological dimensions from a legal standpoint were analyzed. Its also explored the gender stereotypes established by society and the role of laws in guaranteeing the right of autonomy that takes on greater relevance in DSD. Through this analysis, it was concluded that despite intersexuality having been analyzed by Colombia’s Constitutional Court, that it is stated as a fair entity, the stigmatization by society has not allowed these individuals to belong to an egalitarian context in which everyone has the same opportunities of access to the goods and services that they need. This leads individuals to hide their identity and expression of genre in order to be accepted in a set of contexts. Thus creating a vulnerability that the health system must be able to identify and in which it is necessary to intervene at a biopsychosocial level, in order to guarantee the protection of the individual within an unquestionable frame of equality and solidarity.

Keywords: disorders of sex development, gender identity, sexuality, transgender persons

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Authors: Rebecca Greenberg, Nipa Chauhan, Rashad Rehman

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Paternalism, in its traditional form, seems largely incompatible with Western medicine. In contrast, Family-Centred Care, a partial response to historically authoritative paternalism, carries its own challenges, particularly when operationalized as family-directed care. Specifically, in neonatology, decision-making is left entirely to Substitute Decision Makers (most commonly parents). Most models of shared decision-making employ both the parents’ and medical team’s perspectives but do not recognize the inherent asymmetry of information and experience – asking parents to act like physicians to evaluate technical data and encourage physicians to refrain from strong medical opinions and proposals. They also do not fully appreciate the difficulties in adjudicating which perspective to prioritize and, moreover, how to mitigate disagreement. Introducing a mild form of paternalism can harness the unique skillset both parents and clinicians bring to shared decision-making and ultimately work towards decision-making in the best interest of the child. The notion expressed here is that within the model of shared decision-making, mild paternalism is prioritized inasmuch as optimal care is prioritized. This mild form of paternalism is known as Beneficent Paternalism and justifies our encouragement for physicians to root down in their own medical expertise to propose treatment plans informed by medical expertise, standards of care, and the parents’ values. This does not mean that we forget that paternalism was historically justified on ‘beneficent’ grounds; however, our recommendation is that a re-integration of mild paternalism is appropriate within our current Western healthcare climate. Through illustrative examples from the NICU, this paper explores the appropriateness and merits of Beneficent Paternalism and ultimately its use in promoting family-centered care, patient’s best interests and reducing moral distress. A distinctive feature of the NICU is the fact that communication regarding a patient’s treatment is exclusively done with substitute decision-makers and not the patient, i.e., the neonate themselves. This leaves the burden of responsibility entirely on substitute decision-makers and the clinical team; the patient in the NICU does not have any prior wishes, values, or beliefs that can guide decision-making on their behalf. Therefore, the wishes, values, and beliefs of the parent become the map upon which clinical proposals are made, giving extra weight to the family’s decision-making responsibility. This leads to why Family Directed Care is common in the NICU, where shared decision-making is mandatory. However, the zone of parental discretion is not as all-encompassing as it is currently considered; there are appropriate times when the clinical team should strongly root down in medical expertise and perhaps take the lead in guiding family decision-making: this is just what it means to adopt Beneficent Paternalism.

Keywords: care, ethics, expertise, NICU, paternalism

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Authors: Nia Kurniati, Efa Laela Fakhriah

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The regulation in Indonesia provides space for the land dispute to be settled outside the court by the government through National Land. In this case, the bureaucrat of Badan Pertanahan Nasional (BPN) acts as mediator to reach a fair agreement between the disputing parties. Land dispute is from a party who denies the ownership of the other party of a land and denies legal-technical facts written on land certificate published by BPN. Appointing the bureaucrat of BPN as mediator in dispute settlements may possibly create conflict of interest since the object. It has become a concern since bureaucrat of BPN acts as mediator, he will be bias and partial in assisting the dispute settlement, thus the spirit and purposes of mediation will be hampered. This issue triggers to be thoroughly examined further in a relation with the role and function of BPN as land dispute mediator. The methodology used in this research is a normative-legal one with qualitative-legal analytical method. The object of this research is in the form of random sampling of land dispute cases being occurred in some areas. Several principles in mediation have to be made as the base of the consideration to appoint bureaucrat of BPN as mediator since the mediator is an impartial third party, working with both disputing parties and assisting them to reach a fair resolution written in agreement as a foundation of land dispute settlement. The existence of BPN as mediator in land dispute settlement encounters conflict of interest which uphold legal uncertainty to act objectively.

Keywords: Indonesia, land dispute, mediator, national land authority

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Authors: Ahmed Mohamed Elnady Mohamed Elsafty

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This paper explains a developed applied objective model to measure the culture qualitatively and quantitatively, whether in individuals or in teams, in order to be able to use culture correctly or modify it efficiently. This model provides precise measurements and consistent interpretations by being comprehensive, updateable, and protected from being misled by imitations. Methodically, the provided model divides the culture into seven dimensions (total 43 cultural factors): First dimension is outcome-orientation which consists of five factors and should be highest in leaders. Second dimension is details-orientation which consists of eight factors and should be in highest intelligence members. Third dimension is team-orientation which consists of five factors and should be highest in instructors or coaches. Fourth dimension is change-orientation which consists of five factors and should be highest in soldiers. Fifth dimension is people-orientation which consists of eight factors and should be highest in media members. Sixth dimension is masculinity which consists of seven factors and should be highest in hard workers. Last dimension is stability which consists of seven factors and should be highest in soft workers. In this paper, the details of all cultural factors are explained. Practically, information collection about each cultural factor in the targeted person or team is essential in order to calculate the degrees of all cultural factors using the suggested equation of multiplying 'the score of factor presence' by 'the score of factor strength'. In this paper, the details of how to build each score are explained. Based on the highest degrees - to identify which cultural dimension is the prominent - choosing the tested individual or team in the supposedly right position at the right time will provide a chance to use minimal efforts to make everyone aligned to the organization’s objectives. In other words, making everyone self-motivated by setting him/her at the right source of motivation is the most effective and efficient method to achieve high levels of competency, commitment, and sustainability. Modifying a team culture can be achieved by excluding or including new members with relatively high or low degrees in specific cultural factors. For conclusion, culture is considered as the software of the human beings and it is one of the major compression factors on the managerial discretion. It represents the behaviors, attitudes, and motivations of the human resources which are vital to enhance quality and safety, expanding the market share, and defending against attacks from external environments. Thus, it is tremendously essential and useful to use such a comprehensive model to measure, use, and modify culture.

Keywords: culture dimensions, culture factors, culture measurement, cultural analysis, cultural modification, self-motivation, alignment to objectives, competency, sustainability

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Authors: Elona Saliaj

Abstract:

The registration of real estate in Albania after the 90's has been a long process in time and with high cost for the country. Passing the registration system from a centralized system to a free market private system, it’s accompanied by legal uncertainties that have led to economic instability. The reforms that have been undertaken in terms of property rights have been numerous and continuous throughout the years. But despite the reforms, the system of registration of real estate, has failed to be standards requirements established by the European Union. The completion of initial registration of real estate, legal treatment of previous owners or legalization of illegal constructions remain among the main problems that prevent the development of the country in its economic sector. The performance of the registration of real estate system and dealing with issues that have appeared in the Court of First Instance, the civil section of the Albanian constitute the core of handling this analysis. This paper presents a detailed analysis on the registration system that is chosen to be applied in our country for real estate. In its content it is also determined the institution that administrates these properties, the management technique and the law that determinate its functionality. The strategy is determined for creating a modern and functional registration system and for the country remains a challenge to achieve. Identifying practical problems and providing their solutions are also the focus of reference in order to improve and modernize this important system to a state law that aims to become a member of the European Union.

Keywords: real estates registration system, comparative aspects, cadastral area, property certificate, legal reform

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Authors: Ahmad Sanusi Azmi, Amiruddin Mohd Sobali, Zulhilmi Mohamed Nor, Mohd Yusuf Ismail, Amran Abdul Halim

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The non-Muslim communities’ reactions to the denials of the prophethood of Muḥammad in the ninth century created an impact on the development of Islamic prophetology. Vigorous refutations from non-Muslim community, specifically the Jews, Christians and Brahmins urged Muslims to develop a solid mechanism in defense of the status of their beloved prophet. One of the works that has been recognized as an apparatus to defend the Prophet Muḥammad veracity is al-Dīn wa al-Dawla composed by Ibn Rabban, a physician of the Caliph’s court. This study analyses the novelty of his approaches in exploring Sīra Nabawiyya and defending the prophethood of Muḥammad. The study employed a descriptive, comparative and critical approach where it analyses and extracts the author original approach in explaining the legitimacy of Muḥammad’s prophethood and enlightening the Prophet’s biography. The study in its finding argues that most of Ibn Rabban arguments in this work are actually developed from the foundations of Biblical scripture. His style of interpreting Biblical passages indicates a possible dependence on Ibn al-Layth’s letter. However, the way in which he presents Qur’ānic references seems not to be in accordance with Ibn al-Layth’s perspective. This is where the novelty of his approach is distinguished. As a result, the study also affirms that Ibn Rabban imposes his own standards of selection and interpretation of Qur’ānic verses when he applies it as reference to the Prophet life.

Keywords: Sīra Nabawiyya, Ibn Rabban, al-Dīn wa al-Dawla, Christian, Dalāil Nubuwwa

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Authors: Nicholas McNamara, John Brookes, Michael Williams, Manish Mathew, Elizabeth Brookes, Tristan Yan, Paul Bannon

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Objective: Pericardial effusions are an uncommon but potentially fatal complication after cardiac surgery. The goal of this study was to describe the incidence and risk factors associated with the development of pericardial effusion requiring drainage after coronary artery bypass graft surgery (CABG). Methods: A retrospective analysis was undertaken using prospectively collected data. All adult patients who underwent CABG at our institution between 1st January 2017 and 31st December 2018 were included. Pericardial effusion was diagnosed using transthoracic echocardiography (TTE) performed for clinical suspicion of pre-tamponade or tamponade. Drainage was undertaken if considered clinically necessary and performed via a sub-xiphoid incision, pericardiocentesis, or via re-sternotomy at the discretion of the treating surgeon. Patient demographics, operative characteristics, anticoagulant exposure, and postoperative outcomes were examined to identify those variables associated with the development of pericardial effusion requiring drainage. Tests of association were performed using the Fischer exact test for dichotomous variables and the Student t-test for continuous variables. Logistic regression models were used to determine univariate predictors of pericardial effusion requiring drainage. Results: Between January 1st, 2017, and December 31st, 2018, a total of 408 patients underwent CABG at our institution, and eight (1.9%) required drainage of pericardial effusion. There was no difference in age, gender, or the proportion of patients on preoperative therapeutic heparin between the study and control groups. Univariate analysis identified preoperative atrial arrhythmia (37.5% vs 8.8%, p = 0.03), reduced left ventricular ejection fraction (47% vs 56%, p = 0.04), longer cardiopulmonary bypass (130 vs 84 min, p < 0.01) and cross-clamp (107 vs 62 min, p < 0.01) times, higher drain output in the first four postoperative hours (420 vs 213 mL, p <0.01), postoperative atrial fibrillation (100% vs 32%, p < 0.01), and pleural effusion requiring drainage (87.5% vs 12.5%, p < 0.01) to be associated with development of pericardial effusion requiring drainage. Conclusion: In this study, the incidence of pericardial effusion requiring drainage was 1.9%. Several factors, mainly related to preoperative or postoperative arrhythmia, length of surgery, and pleural effusion requiring drainage, were identified to be associated with developing clinically significant pericardial effusions. High clinical suspicion and low threshold for transthoracic echo are pertinent to ensure this potentially lethal condition is not missed.

Keywords: coronary artery bypass, pericardial effusion, pericardiocentesis, tamponade, sub-xiphoid drainage

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Authors: Rika van Zyl

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South Africa’s racial discrimination past has led to the drafting of the Constitution with the Bill of Rights for the people of South Africa. The Bill of Rights prohibits the state from unfairly discriminating directly or indirectly on certain grounds, one of which is race and another is gender. This has forced changes to the law of succession. The customary law rule of male primogeniture was abolished to ensure that women were not excluded from the intestate succession of the male head of the family in 2005. It was said that this rule cannot be reconciled with the notions of equality and human dignity contained in the Bill of Rights. The freedom of testation has further come under fire in South Africa, where it was found to be unfair discrimination and against public policy to exclude a specific gender (women) from inheriting in a private will. Although no one has the right to inherit in South Africa, any person with an interest can approach the court alleging that a right in the Bill of Rights has been infringed. A will that is found inconsistent with the South African Bill of Rights then cannot be enforced. Recent case law found that to leave out a specific gender (women) from a will, based entirely on the fact that they are of said specific gender, is in contravention of the Constitution and should, therefore, be declared invalid. It was said that the courts should take a transformative constitutional approach when equality rights are affected. Otherwise, the historical and insidious unequal distribution of wealth in South Africa will continue along the fault lines such as gender. This decision has opened the debate on the extent to which the state can interfere with the private autonomy of an individual who is deceased. Some of these arguments will be discussed, including the ambit of public policy in this regard.

Keywords: equality, discrimination, succession, public policy

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Authors: Fedorova Elena

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In this article, we draw a distinction between two important functions of public policy in private international law. The first function is widely recognized and relates to the prevention of application of foreign laws and enforcement of foreign court judgments whenever their effects are incompatible with the domestic legal system of the forum. This effectively protects sovereign rights of the forum state as it allows to resist against the undesirable effects of foreign law-making and law-enforcement policies. The second function is less obvious, but not less important. As the internal private legal relationships, international private relationships are usually governed by rules of public policy, to which the parties can not derogate by mutual agreement. Thefore, for international private law relations public policy has a different function than previously mentioned: in this case, the public policy acts as a defense against unacceptable effects of the party autonomy. Thus, this second function of public policy consists in the limitation of the party autonomy wich effects would be unacceptable for the local legal system. In the frame of this second function the author will analyse two types of public policy which can limit the party autonomy: « substantial » public policy (which regulates the substance of international legal relationship) and « conflictual » public policy (which regulates the party autonomy to choose the law applicable for the substance of relationship). The author provides an analysis of these functions of the public policy in the field of international contract law because of the important role of the principle of party autonomy for international contract relations.

Keywords: public policy, general theory of private international law, substantial public policy, conflictual public policy

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Authors: Amir Bastani

Abstract:

The result of the research in the field of human behavioural genetics demonstrates a genetic contribution of behavioural differences in aggression, violence, drug and substance abuse, antisocial personality disorder and other related traits. As the field of human behavioural genetics progresses and achieves credibility, the criminal accused continue to use its types of evidence into the criminal law. One of the most important genetic factors which controls certain neurotransmitters like dopamine and serotonin is the Monoamine Oxidase Acid A (MAOA) gene, known as the 'warrior gene'. The high-profile study by Caspi and colleagues in 2002 showed that the combination between one type of variation of the MAOA gene and childhood maltreatment noticeably predisposes a person to antisocial behaviour. Moreover, further scientific research shows that individuals with the MAOA gene have to some degree difficulties in controlling their impulses. Based on the evidence of MAOA, some criminal accused claimed difficulties in self-control. In the first case – the famous case of Mobley – the court rejected the MAOA evidence on the ground of the lack of scientific support. In contrast, in other cases after the Mobley trial, courts accepted the evidence of MAOA. In this paper, the issue of lack of impulse control produced by the MAOA gene and cases which relied on the MAOA evidence and successfully being accepted will be reviewed in detail. Finally, the anticipation of the paper for the future use of the MAOA evidence in criminal cases will be presented.

Keywords: genetic defence, criminal responsibility, MAOA, self-control

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Authors: Anupriya Sharma, Sapna Narula

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Over the past decade, sustainability has gone mainstream as more people are worried about environment-related issues than ever before. These issues are of even more concern for industries which leave a significant impact on the environment. Following these ecological issues, corporates are beginning to comprehend the impact on their business. Many such initiatives have been made to address these emerging issues in the consumer-driven textile industry. Demand from customers, local communities, government regulations, etc. are considered some of the major factors affecting environmental decision-making. Research also shows that motivations to go green are inevitably determined by the way top managers perceive environmental issues as managers personal values and ethical commitment act as a motivating factor towards corporate social responsibility. Little empirical research has been conducted to examine the relationship between top managers’ personal environmental attitudes and corporate environmental behaviors for the textile industry in the Indian context. The primary purpose of this study is to determine the current state of environmental management in textile industry and whether the attitude of textile firms’ top managers is significantly related to firm’s response to environmental issues and their perceived benefits of environmental management. To achieve the aforesaid objectives of the study, authors used structured questionnaire based on literature review. The questionnaire consisted of six sections with a total length of eight pages. The first section was based on background information on the position of the respondents in the organization, annual turnover, year of firm’s establishment and so on. The other five sections of the questionnaire were based upon (drivers, attitude, and awareness, sustainable business practices, barriers to implementation and benefits achieved). To test the questionnaire, a pretest was conducted with the professionals working in corporate sustainability and had knowledge about the textile industry and was then mailed to various stakeholders involved in textile production thereby covering firms top manufacturing officers, EHS managers, textile engineers, HR personnel and R&D managers. The results of the study showed that most of the textile firms were implementing some type of environmental management practice, even though the magnitude of firm’s involvement in environmental management practices varied. The results also show that textile firms with a higher level of involvement in environmental management were more involved in the process driven technical environmental practices. It also identified that firm’s top managers environmental attitudes were correlated with perceived advantages of environmental management as textile firm’s top managers are the ones who possess managerial discretion on formulating and deciding business policies such as environmental initiatives.

Keywords: attitude and awareness, Environmental management, sustainability, textile industry

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Authors: Laura Ramona Nae

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The issue of risks faced by companies providing tourist and hotel services in the HoReCa field, related to the goods belonging to consumer tourists left in hotel storage, has acquired a new dimension in the context of the economic and geo-political influences that have recently intervened at the global level. Thus, hoteliers and not only had to create contractual mechanisms regarding the risks and to protect the businesses in this field of activity. This situation has led to a reassessment of the importance of insurance, in particular with regard to hotel liability insurance-premises liability, safety, and security of goods. Interpretation of clauses in contracts concluded between hoteliers and tourists consuming hotel services and products, all the more so in the current pandemic context of Covid 19, stressed the increase in the number of disputes generated by them. This article presents a general picture of the significance of the risks related to the activity carried out in the hospitality industry, tourism, respectively within the HoReCa field. The study mainly marks the specificities of the hotel deposit contract, as well as the related insurance specific to the field, as a way to cover these risks. The article also refers to alternative methods of out-of-court settlement of disputes (ADR) in the HoReCa domain, generally used in both Romania and the European Union.

Keywords: consumer tourist, disputes and ADR methods, deposit contract, hotel warehouse and hotelier insurance, hotel services and tourist products, HoReCa

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Authors: J. F. Pollo Gaspary, F. Peron Gaspary, E. M. Simão, R. Concatto Beltrame, G. Orengo de Oliveira, M. S. Ristow Ferreira, J.C. Mairesse Siluk, I. F. Minello, F. dos Santos de Oliveira

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Background: Although palliative care policies and services have been developed, research in this area continues to lag. An integrated model of palliative care is suggested, which includes complementary and alternative services aimed at improving the well-being of patients and their families. The palliative aquatics care multi-device (AuBento) uses several electromagnetic techniques to decrease pain and promote well-being through relaxation and interaction among patients, specialists, and family members. Aim: The scope of this paper is to present a preliminary design study of a device capable of exploring the various existing theories on the biomedical application of magnetic fields. This will be achieved by standardizing clinical data collection with sensory integration, and adding new therapeutic options to develop an advanced palliative aquatics care, innovating in symptom and pain management. Methods: The research methodology was based on the Work Package Methodology for the development of projects, separating the activities into seven different Work Packages. The theoretical basis was carried out through an integrative literature review according to the specific objectives of each Work Package and provided a broad analysis, which, together with the multiplicity of proposals and the interdisciplinarity of the research team involved, generated consistent and understandable complex concepts in the biomedical application of magnetic fields for palliative care. Results: Aubento ambience was idealized with restricted electromagnetic exposure (avoiding data collection bias) and sensory integration (allowing relaxation associated with hydrotherapy, music therapy, and chromotherapy or like floating tank). This device has a multipurpose configuration enabling classic or exploratory options on the use of the biomedical application of magnetic fields at the researcher's discretion. Conclusions: Several patients in diverse therapeutic contexts may benefit from the use of magnetic fields or fluids, thus validating the stimuli to clinical research in this area. A device in controlled and multipurpose environments may contribute to standardizing research and exploring new theories. Future research may demonstrate the possible benefits of the aquatics care multi-device AuBento to improve the well-being and symptom control in palliative care patients and their families.

Keywords: advanced palliative aquatics care, magnetic field therapy, medical device, research design

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Authors: Oyekan Kolawole Jamiu

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The right to life is a moral principle based on the belief that a human being has the right to life and, in particular, should not be unjustly killed by another human being. However, the most worrisome security challenge in Nigeria which has cut short the lives of innocent Nigerians is the activities of the dreaded terrorist group known as Boko Haram (which means Western Education is a sin). Between 2004 till date, over 15000 people have been gruesomely murdered by this terrorist group. However, despite the facts that suspected terrorists are arrested and paraded almost on a daily basis, cases of terrorism in our courts in Nigeria today have not been expeditiously dealt with by the judiciary. This paper examines the concept of right to life. The right to life is an inherent right for each and every person. From his or her birth; the individual is considered a living being that must be protected. The right to life connotes also right to live and grow in a healthy environment where there is appropriate health care, qualitative education and adequate security of lives and property. The paper also examines the fight against terrorism and the duty of the government to protect right to life of every individual even in the midst of the fight against terrorism. The paper further reviews the Terrorism Act 2011(as amended) and the clogs in the wheel of prosecution of suspected terrorists. The paper concludes that since terrorism is a new security challenge, to prevent conflict of interest, only one security agency should be trained and saddled with the responsibility of prosecuting suspected terrorist, Law should be enacted to compel intelligent gathering and sharing of information among security agencies and in addition, a special court should be established to deal expeditiously with cases of terrorism in Nigeria.

Keywords: terrorism, intelligent gathering, right to life, prosecution

Procedia PDF Downloads 320

Authors: Mahdi Karimi

Abstract:

One of the most basic standards of fair trial is the right to defense, hire an attorney and its presence in the hearing stages. On the one hand, based on the reason and justice, as the legal issues, particularly criminal affairs, become complicated, the accused must benefit from an attorney in the court in order to defend itself which requires legal knowledge. On the other hand, as the judicial system has jurists such as investigation judges at its disposal, the accused must enjoy the same right to defend itself and reject allegations so that the balance is maintained between the litigating parties based on the principle of "equality of arms". The right to adequate time and facilities for defense is cited among the principles and rights relevant to the proceedings in international regulations such as the International Covenant on Civil and Political Rights. The innovations made in the Code of Criminal Procedure in 2013 guaranteed the presence of the accused’s attorney in the proceedings. The present study aims at assessing the result of the aforementioned guarantee in practice and made attempts to investigate the effect of the presence of accused’s attorney on reducing the punishment by asking the question and addressing the statistical population of this study including 48 judges of lower courts and courts of appeal. It seems that in despite of guarantees provided in the new Code of Criminal Procedure, Iran's penal system, does not tolerate the presence of an attorney in practice.

Keywords: defense attorney, equality of arms, fair trial, reducing the penalty, right to defense

Procedia PDF Downloads 302

Authors: Liu Jiaxin

Abstract:

This paper seeks to do an in-depth investigation on the phenomenon of Early Modern era (1500-1700s) Livonian werewolves. Noting their uniqueness in comparison to contemporaneous werewolves hailing from other geographic areas, the paper suggests that the Livonian werewolf is a metaphor for Livonian society at that time, one which was characterized by social turmoil and strict class hierarchy. This metaphor was utilized by different classes to establish their own interests in society, and thus the paper concludes that the werewolf is a mutable artifact whose value is contingent on its social context. This is demonstrated by the particular case of Old Thiess—a poor, elderly Livonian peasant who gave an unorthodox and anomalous testimony when accused of being a werewolf. In his court statement, it is shown how Thiess was, in fact, alluding to social tensions by lambasting the rich German elite and establishing the righteousness of the peasantry, of which he was a member. A close reading method was utilized on the trial transcript of Old Thiess with heavy reference to Carlo Ginzburg and Bruce Lincoln’s collaborative work Old Thiess, a Livonian werewolf: a classic case in comparative perspective. Through a contextual reading of Livonia’s social atmosphere, the paper draws connections between the content of the trial to wider societal disturbances happening at the time. The thesis—that the werewolf is a flexible metaphor for the social milieu—is further buttressed by numerous contemporaneous sources that had similar messages as Thiess’ transcript, which are discussed as well.

Keywords: early-modern baltic, Livonia, Old Thiess, social history, werewolves

Procedia PDF Downloads 78