Search results for: judicial review

Authors: Susanna Menis

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The context of this study revolves around the theme of consent and the construction of unlawfulness in judicial decisions. It aims to explore the formation of societal perceptions of unlawfulness within the context of consensual sexual acts leading to harmful consequences. This study investigates how judges create legal rules that reflect social solidarity and protect against violence. Specifically, the research aims to understand the justification behind criminalising consensual sexual activity when categorised under different offences. The main question addressed in this study will evaluate the way judges create legal rules that they believe reflect social solidarity and protect against violence. The study employs a historical genealogy approach as its methodology. This approach allows for tracing back the original formation of societal perspectives on unlawfulness, thus highlighting the socially constructed nature of the present understanding. The data for this study will be collected through an extensive literature review, examining historical legal cases and documents that shape the understanding of unlawfulness. This will provide a comprehensive view of how social attitudes toward private sexual relations influenced the creation of legal rules. The theoretical importance of this research lies in its contribution to socio-legal scholarship. This study adds to the existing knowledge on the topic by exploring questions of unconscious bias and its origins. The findings shed light on how and why individuals possess unconscious biases, particularly within the judicial system. In conclusion, this study investigates judicial decisions concerning consensual sexual acts and the construction of unlawfulness. By employing a historical genealogy approach, the research sheds light on how judges create legal rules that reflect social solidarity and aim to protect against violence. The theoretical importance of this study lies in its contribution to understanding unconscious bias and its origins within the judicial system. Through data collection and analysis procedures, this study aims to provide valuable insights into the formation of social attitudes towards private sexual relations and its impact on legal rulings.

Keywords: consent, sexual offences, offences against the person, legal genealogy, social construct

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Authors: Mariam Begadze

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Separation of Powers (SOP) has often been the most frequently posed objection against the judicial enforcement of socio-economic rights. Although a lot has been written to refute those, very rarely has it been assessed what effect the current practice of social rights adjudication has had on the construction of SOP doctrine in specific jurisdictions. Colombia is an appropriate case-study on this question. The notion of collaborative SOP in the 1991 Constitution has affected the court’s conception of its role. On the other hand, the trends in the jurisprudence have further shaped the collaborative notion of SOP. Other institutional characteristics of the Colombian constitutional law have played its share role as well. Tutela action, particularly flexible and fast judicial action for individuals has placed the judiciary in a more confrontational relation vis-à-vis the political branches. Later interventions through abstract review of austerity measures further contributed to that development. Logically, the court’s activism in this sphere has attracted attacks from political branches, which have turned out to be unsuccessful precisely due to court’s outreach to the middle-class, whose direct reliance on the court has turned into its direct democratic legitimacy. Only later have the structural judgments attempted to revive the collaborative notion behind SOP doctrine. However, the court-supervised monitoring process of implementation has itself manifested fluctuations in the mode of collaboration, moving into more managerial supervision recently. This is not surprising considering the highly dysfunctional political system in Colombia, where distrust seems to be the default starting point in the interaction of the branches. The paper aims to answer the question, what the appropriate judicial tools are to realize the collaborative notion of SOP in a context where the court has to strike a balance between the strong executive and the weak and largely dysfunctional legislative branch. If the recurrent abuse lies in the indifference and inaction of legislative branches to engage with political issues seriously, what are the tools in the court’s hands to activate the political process? The answer to this question partly lies in the court’s other strand of jurisprudence, in which it combines substantive objections with procedural ones concerning the operation of the legislative branch. The primary example is the decision on value-added tax on basic goods, in which the court invalidated the law based on the absence of sufficient deliberation in Congress on the question of the bills’ implications on the equity and progressiveness of the entire taxing system. The decision led to Congressional rejection of an identical bill based on the arguments put forward by the court. The case perhaps is the best illustration of the collaborative notion of SOP, in which the court refrains from categorical pronouncements, while does its bit for activating political process. This also legitimizes the court’s activism based on its role to counter the most perilous abuse in the Colombian context – failure of the political system to seriously engage with serious political questions.

Keywords: Colombian constitutional court, judicial review, separation of powers, social rights

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Authors: Daniela Piana

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This work casts light on what lies underneath the rule of law. In order to do so it unfolds the arguments in three main steps. The first one is a pars destruens: the mainstreaming scholarship on judicial independence and judicial accountability is questioned under the large amount of data we have at our disposal (this step is accomplished in the first two paragraphs). The second step is the reframe of the concept of the rule of law and the consequent rise of a hidden dimension, which has been so far largely underexplored: responsiveness. The third step consists into offering the readers empirical support and drawing thereby consequences in terms of policy design and citizens engagement into the rule of law implementation (these two steps are accomplished in the third paragraph).

Keywords: rule of law, accountability, trust, citizens

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Authors: João Pedro Albino, Ana Cláudia Pires Ferreira de Lima

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Humanity has undergone a transformation from the physical to the virtual world, generating an enormous amount of data on the world wide web, known as big data. Many facts that occur in the physical world or in the digital world are proven through records made on the internet, such as digital photographs, posts on social media, contract acceptances by digital platforms, email, banking, and messaging applications, among others. These data recorded on the internet have been used as evidence in judicial proceedings. The identification of internet users is essential for the security of legal relationships. This research was carried out on scientific articles and materials from courses and lectures, with an analysis of Brazilian legislation and some judicial decisions on the request of static data from logs and Internet Protocols (IPs) from application and connection providers. In this article, we will address the determination of authorship of data processing on the internet by obtaining the IP address and the appropriate judicial procedure for this purpose under Brazilian law.

Keywords: IP address, digital forensics, big data, data analytics, information and communication technology

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Authors: Antonio Sepúlveda, Camila Marques, Carlos Bolonha, Igor De Lazari, Henrique Rangel

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The judicial practice faces a tension between normative discretion and institutional capacities. There are clarity graduations of the statutory text that might induce different specialization levels of the judges. A major problem stemming from that tension is a greater discretion without a proportional specialization. The normative clarity, although its absence can be overcome through specialization, avoids problems related to disproportionate discretion and judicial dissonance. When judicial interpretation deals with the lack of legal clarity, a significant juridical insecurity frame is verified. Decisional uniformity mechanisms are created in order to surpass these problems. Brazil brings great examples, such as the súmulas, the enunciados, and the súmulas vinculantes. Despite of the resistance presented to the latter, mainly based on judges’ independence, even countries of the Common Law tradition develop such mechanisms. The British Guidelines face the lack of legal clarity problem and promote a decisional consonance system.

Keywords: generalist judges, institutional capacities, normative clarity, normative discretion

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Authors: Andhika Danesjvara

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Governance of the Republic of Indonesia should be based on the principle of sovereignty and the rule of law. Based on these principles, all forms of decisions and/or actions of government administration should be based on the sovereignty of the people and the law. Decisions and/or actions for citizens should be based on the provisions of the legislation and the general principles of good governance. Control of the decisions and/or actions is a part of administrative review and also judicial control. The control is part of the administrative justice system, which is intended for people affected by the decisions or administrative actions. This control is the duty and authority of the government or independent administrative court. Therefore, systems and procedures for the implementation of the task of governance and development must be regulated by law. Systems and procedures of governance is a subject studied in administrative law, therefore, the research also includes a review of the principles of law in administrative law. The administrative law procedure is important for the government to make decisions, the question is whether the procedures are part of the justice system itself.

Keywords: administrative court, administrative justice, administrative law, administrative procedures

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Authors: Yi Yang

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In the era of 'Internet plus', the rapid development of webcast has posed new challenges to the intellectual property law. Meanwhile, traditional copyright protection has also exposed the existing theoretical imbalance in webcast. Through the analysis of the outstanding problems in the copyright protection of the network live broadcast, this paper points out that the main causes of the problems are the unclear nature of the copyright of the network live broadcast, the copyright protection system of the game network live broadcast has not yet been constructed, and the copyright infringement of the pan entertainment live broadcast is mostly, and so on. Based on the current practice, this paper puts forward the specific thinking of the protection path of online live broadcast copyright. First of all, to provide a reasonable judicial solution for a large number of online live copyright cases, we need to integrate the right scope and regulatory behavior of broadcasting right and information network communication right. Secondly, in order to protect the rights of network anchors, the webcast should be regarded as works. Thirdly, in order to protect the copyright of webcast and prevent the infringement of copyright by webcast, the webcast platform will be used as an intermediary to provide solutions for solving the judicial dilemma. In the era of 'Internet plus', it is a theoretical attempt to explore the protection and method of copyright protection on webcast, which has positive guiding significance for judicial practice.

Keywords: 'Internet Plus' era, webcast, copyright, protection dilemma

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Authors: Mehrnoosh Abouzari, Shahrokh Shahraei

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With the development of artificial intelligence in the present age, intelligent machines and systems have proven their actual and potential capabilities and are mindful of increasing their presence in various fields of human life in the fields of industry, financial transactions, marketing, manufacturing, service affairs, politics, economics and various branches of the humanities .Therefore, despite the conservatism and prudence of law enforcement, the traces of artificial intelligence can be seen in various areas of law. Including judicial robotics capability estimation, intelligent judicial decision making system, intelligent defender and attorney strategy adjustment, dissemination and regulation of different and scattered laws in each case to achieve judicial coherence and reduce opinion, reduce prolonged hearing and discontent compared to the current legal system with designing rule-based systems, case-based, knowledge-based systems, etc. are efforts to apply AI in law. In this article, we will identify the ways in which AI is applied in its laws and regulations, identify the dominant concerns in this area and outline the relationship between these two areas in order to answer the question of how artificial intelligence can be used in different areas of law and what the implications of this application will be. The authors believe that the use of artificial intelligence in the three areas of legislative, judiciary and executive power can be very effective in governments' decisions and smart governance, and helping to reach smart communities across human and geographical boundaries that humanity's long-held dream of achieving is a global village free of violence and personalization and human error. Therefore, in this article, we are going to analyze the dimensions of how to use artificial intelligence in the three legislative, judicial and executive branches of government in order to realize its application.

Keywords: artificial intelligence, law, intelligent system, judge

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Authors: Marie Manikis

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This paper argues that the scholarship to date on victims in the criminal process has mainly adopted a private conception of victims –as bearers of individual interests, rights, and remedies– rather than a conception of the victim as an actor with public functions and interests, who has historically and continuously taken on an active role in the common law tradition. This conception enables a greater understanding of the various developments around victim participation in common law criminal justice systems and provides a useful analytical tool to understand the different roles of victims in England and Wales and the United States. Indeed, the main focus on individual rights and the conception of the victim as a private entity undermines the distinctive and increasing role victims play in the wider criminal justice process as agents of accountability through administrative-based processes within and outside courts, including private prosecutions, internal review processes within prosecutorial agencies, judicial review, and ombudsmen processes.

Keywords: victims, participation, criminal justice, accountability

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Authors: Bellinda R. Chinowawa

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As part of a wider strategy to stifle civil society, Governments routinely resort to judicial harassment through the use of civil and criminal to impugn the integrity of human rights defenders and that of perceived political opponents. This phenomenon is rife in militarised or autocratic regimes where there is no tolerance for dissenting voices. Zimbabwe, ostensibly a presidential republic founded on the values of transparency, equality, freedom, is characterised by brutal suppression of perceived political opponents and those who assert their basic human rights. This is done through a wide range of tactics including unlawful arrests and detention, torture and other cruel, inhuman degrading treatment and enforced disappearances. Professionals including, journalists and doctors are similarly not spared from state attack. For human rights defenders, the most widely used tool of repression is that of judicial harassment where the judicial system is used to persecute them. This can include the levying of criminal charges, civil lawsuits and unnecessary administrative proceedings. Charges preferred against range from petty offences such as criminal nuisance to more serious charges of terrorism and subverting a constitutional government. Additionally, government sponsored individuals and organisations file strategic lawsuits with pecuniary implications order to intimidate and silence critics and engender self-censorship. Some HRDs are convicted and sentenced to prison terms, despite not being criminals in a true sense. While others are acquitted judicial harassment diverts energy and resources away from their human rights work. Through a consideration of statistical data reported by human rights organisations and face to face interviews with a cross section of human rights defenders, the article will map the incidence of judicial harassment in Zimbabwe. The article will consider the multi-level sociological and contextual factors which influence the Government of Zimbabwe to have easy recourse to criminal law and the debilitating effect of these actions on HRDs. These factors include the breakdown of the rule of law resulting in state capture of the judiciary, the proven efficacy of judicial harassment from colonial times to date, and the lack of an adequate redress mechanism at international level. By mapping the use of the judiciary as a tool of repression, from the inception of modern day Zimbabwe to date, it is hoped that HRDs will realise that they are part of a greater community of activists throughout the ages and should emboldened in the realisation that it is an age old tactic used by fallen regimes which should not deter them from calling for accountability.

Keywords: autocratic regime, colonial legacy, judicial harassment, human rights defenders

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Authors: Le Bich Thuy

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A trust is an alien notion in Vietnamese law until 2021, which not only dissatisfies the practical demands of the nation’s civilians but also results in some detrimental shortcomings. The Judicial Case Law No 2 to be applied in adjudicating subsequent cases is a typical example of such negative consequences, implying a need for an application of trust law into Vietnam’s legal system. This paper first presents the similarity in nature between parties’ relationship in the mentioned case and a proprietary trust relationship, followed by an analysis of such a case from a trusted perspective. Subsequently, an introduction of potential obstacles hindering the introduction of trust law into the Vietnamese legal framework is presented. Finally, some implications are suggested for perfecting Vietnam’s legal system.

Keywords: Vietnamese case law no 2, trust law, private property management, patrimony

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Authors: Reuben Govender

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Culpability is an essential element for an accused to be held liable for a crime. The mental element or mens rea determines blameworthiness of an accused on a charge of killing a person. The mens rea required for a conviction of murder is intent while culpable homicide requires negligence. Central to blameworthiness in mens rea is individual freedom and voluntariness. The test for intent is subjective and objective for negligence. This paper presents a review of dolus eventualis in the context of murder trials and from a South African perspective. This paper poses a central questions namely, is dolus eventualis a ‘weaker currency’ during sentencing for murder? This paper attempts to answer this question by reviewing the concept of dolus eventualis, the test in judicial application, a review of decided South African cases in its application, its incorrect application and finally, considerations for its correct application. Lastly, the ‘weight’ of a dolus eventualis conviction in terms of sentencing will be reviewed to support the central question which is answered in the negative.

Keywords: dolus eventualis, dolus indeterminatus, dolus generalis, mens rea

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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: Mariam Shah

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The way the human mind interprets and comprehends the world it occupies has long been a topic of discussion amongst philosophers and phenomenologists. This paper will focus predominantly on the ideologies espoused by the phenomenologist Alfred Schutz and will investigate how we attribute meaning to an event through the process of typification, and the production and usage of ‘types' and ‘stereotypes.' This paper will then discuss how subjective ideologies innate within us result in unique and subjective decision outcomes, based on a phenomenologically influenced theoretical framework which will illustrate how we form ‘types’ in order to ‘typecast’ and form judgements of everything and everyone we experience. The framework used will be founded in theory espoused by Alfred Schutz, and will review the different types of knowledge we rely on innately to inform our judgements, the relevance we attribute to the information which we acquire, and how we consciously and unconsciously apply this framework to everyday situations. An assessment will then be made of the potential impact that these subjective meaning structures can present when dispensing justice in criminal courts. This paper will investigate how these subjective meaning structures can influence our consciousness on both a conscious and unconscious level, and how this could potentially result in bias judicial outcomes due to negative ‘types’ or ‘stereotypes.' This paper will ultimately illustrate that we unconsciously and unreflexively use pre-formed types and stereotypes to inform our judgements and give meaning to what we have just experienced.

Keywords: Alfred Schutz, criminal courts, decision making, judicial decision making, phenomenology, Schutzian stereotypes, types, typification

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Authors: Fethia Braik

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This paper summarizes the history of the US Supreme Court. It did not enjoy today’s status. It did neither control legislation nor the executive power. It was until 1803, during Marshall’s term, that it gained the pride of ruling over the constitutionality of acts be they federal or local, congressional or presidential. The Chief Justice, whether intended or not, vested such power in the supreme judicial institution via the case of Marbury v. Madison. Such power, nevertheless, had not been exercised for many years, till the Dred Scott case.

Keywords: Judiciary Acts 1789, 1801, chief justice, associate justice, justice of peace, review of constitutionality of acts, Jay court, Ellsworth court, Marshall court

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Authors: Sonny Dewi Judiasih

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Every person retains the right to marry and starts a family through a legitimized marriage. Indonesian Marriage Act has regulated the minimum age for boys to marry is 19 while the girls is 16, with an exception that the parents could ask for an exemption to the court or to the authorized official. Despite the age limit is set by the Marriage Act, however, with the influences from adat law and islamic law which allows younger persons to marry, the child marriage phenomenon is inevitable to happen in Indonesia. Child marriages in Indonesia have shown such alarming fact where 4.8 percentage of total marriage number come from persons with the age of 10 to 14 years old. The percentage was the result from a research conducted by the National Population and Family Planning Board (BKKBN). The result shows 41.9 percent of child marriages was contributed by girls who marry in the age of 15 to 19, which mostly comes from villagers. Other fact shows 50 percent of child marriages end in divorce with grounds varied from the mental health of the children, economic situation, and so on. With more children committed early marriages, more babies will be borned from indebted families. Subsequently, the government’s program to alleviate poverty will be short of expectations. Other risk for child marriages includes death of the mother and the child after giving birth. The people have challenged the legality of child marriages through judicial review filed to the Constitutional Court. The Court decided to reinforce the age limitation previously set by the Marriage Act by issuing judicial decision no: 30-74/PUU-Xii/2014. The Court stated that changes to the age limit must be in conform with cultural and traditional situation. Further, it stated child marriages are allowed to be arranged as an “emergency exit” if the parents filed such request to an exemption on the grounds of coercive situation and after the court or the authorized officials issued its approval.

Keywords: child, marriage, court, Indonesia

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Authors: Jenny Paola Forero Pachón, Sonia Cristina Gamboa Sarmiento, Luis Carlos Gómez Flórez

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The Colombian government has defined an e-government strategy to take advantage of Information Technologies (IT) in order to contribute to the building of a more efficient, transparent and participative State that provides better services to citizens and businesses. In this regard, the Justice sector is one of the government sectors where IT has generated more expectation considering that the country has a judicial processes backlog. This situation has led to the search for alternative forms of access to justice that speed up the process while providing a low cost for citizens. To this end, the Colombian government has authorized the use of Alternative Dispute Resolution methods (ADR), a remedy where disputes can be resolved more quickly compared to judicial processes while facilitating greater communication between the parties, without recourse to judicial authority. One of these methods is conciliation, which includes a special modality that takes advantage of IT for the development of itself known as virtual conciliation. With this option the conciliation is supported by information systems, applications or platforms and communications are provided through it. This paper evaluates the level of maturity in how the service of virtual conciliation is under the framework of this strategy. This evaluation is carried out considering Shahkooh's 5-phase model for e-government. As a result, it is evident that in the context of conciliation, maturity does not reach the necessary level in the model so that it can be considered as virtual conciliation; therefore, it is necessary to define strategies to maximize the potential of IT in this context.

Keywords: alternative dispute resolution, e-government, evaluation of maturity, Shahkooh model, virtual conciliation

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Dorota Galeza

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This paper argues that networks, such as the ECN and the American network, are affected by certain small events which are inherent to path dependence and preclude the full evolution towards efficiency. It is advocated that the American network is superior to the ECN in many respects due to its greater flexibility and longer history. This stems in particular from the creation of the American network, which was based on a small number of cases. Such a structure encourages further changes and modifications which are not necessarily radical. The ECN, by contrast, was established by legislative action, which explains its rigid structure and resistance to change. This paper is an attempt to transpose the superiority of the American network on to the ECN. It looks at concepts such as judicial cooperation, harmonisation of procedure, peer review and regulatory impact assessments (RIAs), and dispute resolution procedures.

Keywords: antitrust, competition, networks, path dependence

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Authors: Aishwarya Pothula

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Euthanasia in India is a politically dormant policy issue in the sense that discussions around it are sporadic in nature (usually with developments in specific cases) and it stays as a dominant issue in the public domain for a fleeting period. In other words, it is a non-political issue that has been unable to successfully get on the policy agenda. This paper studies how the Supreme Court of India (SC) plays a role in euthanasia’s policy making. In 2011, the SC independently put a law in place that legalized passive euthanasia through its judgement in the Aruna Shanbaug v. Union of India case. According to this, it is no longer illegal to withhold/withdraw a patient’s medical treatment in certain cases. This judgement, therefore, is the empirical focus of this paper. The paper essentially employs two techniques of discourse analysis to study the SC’s system of argumentation. The two methods, Text Analysis using Gasper’s Analysis Table and Frame Analysis – are complemented by two discourse techniques called metaphor analysis and lexical analysis. The framework within which the analysis is conducted lies in 1) the judicial process of India, i.e. the SC procedures and the Constitutional rules and provisions, and 2) John W. Kingdon’s theory of policy windows and policy entrepreneurs. The results of this paper are three-fold: first, the SC dismiss the petitioner’s request for passive euthanasia on inadequate and weak grounds, thereby setting no precedent for the historic law they put in place. In other words, they leave the decision open for the Parliament to act upon. Hence the judgement, as opposed to arguments by many, is by no means an instance of judicial activism/overreach. Second, they define euthanasia in a way that resonates with existing broader societal themes. They combine this with a remarkable use of authoritative and protective tones/stances to settle at an intermediate position that balances the possible opposition to their role in the process and what they (perhaps) perceive to be an optimal solution. Third, they soften up the policy community (including the public) to the idea of passive euthanasia leading it towards a Parliamentarian legislation. They achieve this by shaping prevalent principles, provisions and worldviews through an astute use of the legal instruments at their disposal. This paper refers to this unconventional role of the SC as ‘judicial entrepreneurship’ which is also the first scholarly contribution towards research on euthanasia as a policy issue in India.

Keywords: argumentation analysis, Aruna Ramachandra Shanbaug, discourse analysis, euthanasia, judicial entrepreneurship, policy-making process, supreme court of India

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Authors: Margarita Gáfaro, Karelys Guzmán, Paola Poveda

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This paper establishes the theoretical aspects that explain the barriers to accessing credit for small agricultural producers in developing countries and identifies successful policy experiences to mitigate them. We will test two hypotheses. The first one is that information asymmetries, high transaction costs and high-risk exposure limit the supply of credit to small agricultural producers in developing countries. The second hypothesis is that low levels of financial education and productivity and high uncertainty about the returns of agricultural activity limit the demand for credit. To test these hypotheses, a review of the theoretical and empirical literature on access to rural credit in developing countries will be carried out. The first part of this review focuses on theoretical models that incorporate information asymmetries in the credit market and analyzes the interaction between these asymmetries and the characteristics of the agricultural sector in developing countries. Some of the characteristics we will focus on are the absence of collateral, the underdevelopment of the judicial systems and insurance markets, and the high dependence on climatic factors of production technologies. The second part of this review focuses on the determinants of credit demand by small agricultural producers, including the profitability of productive projects, security conditions, risk aversion or loss, financial education, and cognitive biases, among others. There are policies that focus on resolving these supply and demand constraints and managing to improve credit access. Therefore, another objective of this paper is to present a review of effective policies that have promoted access to credit for smallholders in the world. For this, information available in policy documents will be collected. This information will be complemented by interviews with officials in charge of the design and execution of these policies in a subset of selected countries. The information collected will be analyzed in light of the conceptual framework proposed in the first two parts of this section. The barriers to access to credit that each policy attempts to resolve and the factors that could explain its effectiveness will be identified.

Keywords: agricultural economics, credit access, smallholder, developing countries

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Authors: Rainner Roweder

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Theme: The present paper aims to analyze the specificity of the judicial evidence linked to the subjects of dignity and personality rights, otherwise known as moral rights, in the determination of the truth and formation of the judicial reasoning in cases concerning these areas. This research is about the way courts in Brazilian domestic law search for truth and handles evidence in cases involving moral rights that are abundant and important in Brazil. The main object of the paper is to analyze the effectiveness of the evidence in the formation of judicial conviction in matters related to morally controverted rights, based on the Brazilian, and as a comparison, the Latin American legal systems. In short, the rights of dignity and personality are moral. However, the evidential legal system expects a rational demonstration of moral rights that generate judicial conviction or persuasion. Moral, in turn, tends to be difficult or impossible to demonstrate in court, generating the problem considered in this paper, that is, the study of the moral demonstration problem as proof in court. In this sense, the more linked to moral, the more difficult to be demonstrated in court that right is, expanding the field of judicial discretion, generating legal uncertainty. More specifically, the new personality rights, such as gender, and their possibility of alteration, further amplify the problem being essentially an intimate manner, which does not exist in the objective, rational evidential system, as normally occurs in other categories, such as contracts. Therefore, evidencing this legal category in court, with the level of security required by the law, is a herculean task. It becomes virtually impossible to use the same evidentiary system when judging the rights researched here; therefore, it generates the need for a new design of the evidential task regarding the rights of the personality, a central effort of the present paper. Methodology: Concerning the methodology, the Method used in the Investigation phase was Inductive, with the use of the comparative law method; in the data treatment phase, the Inductive Method was also used. Doctrine, Legislative, and jurisprudential comparison was the technique research used. Results: In addition to the peculiar characteristics of personality rights that are not found in other rights, part of them are essentially linked to morale and are not objectively verifiable by design, and it is necessary to use specific argumentative theories for their secure confirmation, such as interdisciplinary support. The traditional pragmatic theory of proof, for having an obvious objective character, when applied in the rights linked to the morale, aggravates decisionism and generates legal insecurity, being necessary its reconstruction for morally charged cases, with the possible use of the “predictive theory” ( and predictive facts) through algorithms in data collection and treatment.

Keywords: moral rights, proof, pragmatic proof theory, insufficiency, Brazil

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Authors: Midhun Paul, T. Radha Ramanan

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The objective of this work is to present a state-of-the-art literature review highlighting the challenges in the research of the scheduling of assembly job shop problem and providing an insight on how the future directions of the research would be. The number of work has been substantial that it requires a review to enable one to understand the origin of the research and how it is getting evolved. This review paper presents a comprehensive review of the literature dealing with various studies carried on assembly job shop scheduling. The review details the evolution of the AJS from the perspective of other scheduling problems and also presents a classification scheme. The work also identifies the potential directions for future research, which we believe to be worthwhile considering.

Keywords: assembly job shop, future directions, manufacturing, scheduling

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Authors: Julia Burchett

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After France became the target of an increasing number of terrorist attacks committed by people who have been declared ‘radicalized’, the issue of radicalization has become the main component of the national Action Plan for the Prevention of terrorism, thus stressing the need to address the roots causes of this peril. Therefore, the aim of this research paper is to provide a preliminary review of Frances’s strategy in the fight against terrorist radicalization in order to point out the challenges posed by this phenomenon while also highlighting its contemporary version and the understanding the results. In this regard, it should not be forgotten that the process of radicalization does not always lead to a terrorist act. To this end, the French legal framework that applies to radicalization coupled with the judicial response provided by the National Court will be analyzed in the light of the need for a balance between the concern for security and the protection of fundamental freedoms.

Keywords: criminal law, France, fundamental freedoms, radicalization, terrorism

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Authors: Monir Ahmed

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The main purpose of this literature review was to investigate the existing quantitative clinical studies on the relationship between transcendence and psychological well-being. The primary objective of the literature review is to determine whether the existing studies adequately demonstrate the relationship between transcendence and psychological well-being, including spiritual well-being. A further objective of this literature review is to see if the ‘creatio ex nihilo’ doctrine is necessary to understand transcendence and its relationship with psychological well-being. Systematic literature review methods including studies identified from search engines, extracting data from the studies and assessing their quality for the planned review were used. The outcome of this literature review indicates that self-transcendence (STa), spiritual transcendence (STb) are positively related to psychological well-being. However, such positive relationships present limited scope for understanding transcendence and its relationship with well-being. The findings of this review support the need for further research in the area of transcendence and well-being. This literature review reveals the importance of developing a new transcendence tool for determining an individual’s ability to transcend and the relationship between his/her ability for transcendence and psychological well-being. The author of this paper proposes that the inclusion of the theological doctrine (‘creatio ex nihilo’) in understanding transcendence and psychological well-being is crucial, necessary and unavoidable.

Keywords: transcendence, psychological well-being, self-transcendence, spiritual transcendence, ‘creatio ex nihilo’

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Authors: Bouchaib Gazzaz, Mounir Mehdi

Abstract:

In order to ensure consumer food protection, the food industry has a legal obligation to provide food products that comply with the requirements of the legislation in force. National regulations in this area occupy an important place in the food control system in terms of consumer protection. This article discusses the legal and regulatory framework of food safety and consumer protection in Moroccan law. We used the doctrinal research approach by analyzing the judicial normative and bibliographic legal research. As a result, we were able to present the basic principles of consumer food protection by showing to what extent the food safety law provides effective consumer protection in Morocco. We have concluded that there is an impact -in terms of consumer legal protection- of food law reform on the concept of food safety.

Keywords: food safety, Morocco, consumer protection, framework, food law

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Authors: Emrah Denizhan

Abstract:

Policing studies have drawn attention to the changing role of law enforcement in favour of harsh policing strategies throughout the world. Turkey has become part of this global transition process by restructuring its policing through a series of allegedly democratic amendments to Turkish law. Nevertheless, severe violations of human rights continue to be widely experienced phenomena. This paper suggests problematizing the changing judicial framework of policing together with the persistent aggressive policing in Turkey, by considering Agamben's concept of police as a sovereign entity – sovereign police. In so doing, the paper analytically dissects sovereign police into three premises: the criminalization of the (perceived) enemy, the militarization of the police, and finally, the discretionary use of force. This examination of the state’s early ethno-racial policies and the history of the Turkish police force, and of the changing judicial framework of police-related laws in the 2000s, demonstrates that certain ‘internal enemies’ have been criminalized by increasingly militarized police using escalating discretionary use of force.

Keywords: criminalization, discretionary use of force, policing, sovereignty

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Authors: Susanna Menis

Abstract:

‘Unconscious’ bias is widespread, affecting society on all levels of decision-making and beyond. Placed in the law context, this study will explore the direct effect of the psycho-social and cultural evolution of unconscious bias on how a judicial decision was made. The aim of this study is to contribute to socio-legal scholarship by examining the formation of unconscious bias and its influence on the creation of legal rules that judges believe reflect social solidarity and protect against violence. The study seeks to understand how concepts like criminalization and unlawfulness are constructed by the common law. The study methodology follows two theoretical approaches: historical genealogy and emotions as sociocultural phenomena. Both methods have the ‘tracing back’ of the original formation of a social way of seeing and doing things in common. The significance of this study lies in the importance of reflecting on the ways unconscious bias may be formed; placing judges’ decisions under this spotlight forces us to challenge the status quo, interrogate justice, and seek refinement of the law.

Keywords: legal geneology, emotions, disgust, criminal law

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Authors: Bahia Braktia, Ahlem Ghamri

Abstract:

Years ago, faculties and administrators realized that students entering college were not prepared for the academic sphere; however, as a type of collaborative learning, peer-review gave students a social context in which they could learn more efficiently. Peer-review has proven its effectiveness in higher education. Numerous studies have been conducted on peer review and its effects on the quality of students’ writing, and several publications recommended peer-review as part of the feedback process. Student writers showed a tendency towards making significant meaning-level revisions and surface-level revisions. Last but not least, studies reported that peer-review helps students develop their self-assessment skills as well as critical thinking. The use of peer-review has become well known and widely adopted to the L2 classroom environment. However, little is known about peer review on translation students. The purpose of this study was to investigate the students' perspective on peer-review, and whether this method affected the quality of their translation. A mixed method design was adopted. Students were requested to translate two texts from Arabic into English, and they gave and received structured feedback to their classmates' translations. A survey was administered, followed by semi-structured interviews, to examine the students' attitudes toward peer-review. The results of the study showed that peer-review was considered a good proofreading method for most students. The students also showed a positive attitude toward it, and they reported that they benefited from the interaction with their peers. The findings implied that the inclusion of peer-review can be an effective pedagogical practice for teaching translation and writing to foreign language learners.

Keywords: language teaching, feedback, peer-review, translation

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Authors: Barrere Sarah

Abstract:

The area of liberty, security, and justice within the European Union is still a work in progress. No one can deny that the EU struggles between a monistic and a dualist approach. The aim of our essay is to first review how the European law is perceived by the rest of the international scene. It will then discuss two main mechanisms at play: the interpretation of larger international treaties and the penal mechanisms of European law. Finally, it will help us understand the role of a penal Europe on the international scene with concrete examples. Special attention will be paid to cases that deal with fundamental rights as they represent an interesting case study in Europe and in the rest of the World. It could illustrate the aforementioned duality currently present in the Union’s interpretation of international public law. On the other hand, it will explore some specific European penal mechanism through mutual recognition and the European arrest warrant in the transnational criminality frame. Concerning the interpretation of the treaties, it will first, underline the ambiguity and the general nature of some treaties that leave the EU exposed to tension and misunderstanding then it will review the validity of an EU act (whether or not it is compatible with the rules of International law). Finally, it will focus on the most complete manifestation of liberty, security and justice through the principle of mutual recognition. Used initially in commercial matters, it has become “the cornerstone” of European construction. It will see how it is applied in judicial decisions (its main event and achieving success is via the European arrest warrant) and how European member states have managed to develop this cooperation.

Keywords: European penal law, international scene, liberty security and justice area, mutual recognition

Procedia PDF Downloads 375