Ancient Maxim Research Articles

The res judicata of the decision of the Supreme court of Justice

„Res judicata pro veritate habetur si bis de eadem re ne sit actio”, is an ancient maxim that provides for the fact that a judged matter is considered true, so that the same case is not acted upon twice, or what constituted the object of a judgment can no longer be questioned. The decision of the Supreme Court of Justice is the final point of an often-arduous judicial path, following the examination of the appeal, as the most important appeal in the opinion of the author, which completes the judicial review in the civil process, and the respective decisions of the supreme court they are invested with the power of res judicata.

Административное усмотрение в системе обеспечения государственного суверенитета: функциональный анализ

Discretionary powers of the law enforcement system in general and state security bodies in particular is a deep problematic layer of modern human rights theory. Analysis of administrative discretion of executive authorities in the functional-legal context is required in order to be able to assess the discretionary activity of these bodies in general and as a whole, and not in any part. Regulatory and protective function of administrative law play an important role in the system of ensuring state sovereignty. However, sovereignty must be preserved both in normal (normal, everyday, ordinary) and extraordinary (special, special, extraordinary) conditions. In the first case, there are no threats to statehood, and sovereignty is maintained by sub-functions of the regulatory function. In the second case, there are already some appropriate extraordinary circumstances (military conflicts, rebellions against the government, natural disasters, etc.), for the elimination of which both functions under discussion are involved, but above all - the protective function. Administrative discretion in ensuring state sovereignty is mainly present in the framework of the protective function, it is realised in ensuring state sovereignty only when there are such extraordinary circumstances that threaten the statehood as such. Modern theory and practice of ensuring state sovereignty usually distinguish two basic approaches to the discretionary powers of executive authorities in emergency conditions. The first of them is based on the norms of Russian law, and the second - on the norms of international law, and for simplicity of the reader's perception we will designate them conventionally as the Russian approach and the international approach. The international approach declares the opposite - in order to neutralise internal and external threats to state sovereignty, the agents of executive power have the right not only to exercise all the powers granted to them by law, but also to significantly exceed them, guided by the ancient maxim «necessitas legem non habit». Freedom of action in relation to the Russian approach is described by the formula «intra legem» (from the Latin «within the law»): in the event of an emergency situation, a competent person can choose only those managerial decisions that are explicitly provided for in a special regulatory legal act. This approach mediates the classical domestic ideas about administrative discretion as a purely legal category. The authors concluded that in the Russian Federation administrative discretion plays a priority role in the system of ensuring state sovereignty. In this regard, in almost any country, the competence and specificity of the activities of special services officers, if not provoking, at least not preventing the commission of certain unlawful acts against citizens in conditions that threaten the existence of the state itself. It is considered to be a very modest «payment» for state security (but in Western countries it is still much larger than in Russia).

Virtual operation for hip joint replacement implemented by Sensable_FreeForm_Modelling: A surgical drill.

To design a virtual operation of joint replacement for surgical drills using a haptic device, SenSable_FreeForm_Modelling (SFM), to enhance surgeons' efficiency and enable "Virtual tutorial without reality" for interns. A patient with hip joint osteoarthritis is randomly selected to perform Total Hip Replacement (THR). The hip images were input into Mimics in the format of *.dicom after CT scan and then exported to SFM using the stereolithographic (*.stl) format. A surgical toolkit can be created virtually with Computer Aided Design software such as Pro-E or Ghost SDK and a visual drill scenario of THR directed by a force-respondent stick, namely Phantom. 3D models of the hip joint were rebuilt illustrating clearly that the geometrical shapes of the surgical equipment created are similar to real instruments, and the THR operation is emulated distinctly in novelty. In obedience to an ancient maxim, so called 'genuine knowledge originated from practice', this simulative operation offers hands-on experience for students in the orthopaedics field with remarkable effects, contributing not only teaching cases for medical courses but also a planning basis for physical surgery.

ANALYSIS OF PORTFOLIO MANAGEMENT AT INDIA INFOLINE PVT. LTD (IIFL)

A Portfolio is a collection of assets. The assets can be physical or financial such as shares, Bonds, obligations, preferred shares, etc. The individual investor or fund manager would not want to put all his money into a companys shares which would pose a great risk Therefore, it would follow the ancient maxim that all eggs should not be placed in a basket. In this way, it is possible to achieve the objective of maximizing portfolio performance and, at the same time, minimizing portfolio risk through diversification. Portfolio management is the management of various financial assets that makeup the portfolio. The study investigates the nature and relationship of project portfolio control techniques and portfolio management performance, and how this relationship is moderated by situational idiosyncratic of internal and external dynamics, industries, governance types, and geographic location. A worldwide questionnaire with 242 responses was used, of which 136 high- performing responses were filtered out for quantitative analysis of best practices. Three portfolio control factors were identified: portfolio selection, portfolio reporting, and decision making style. Two measures for portfolio management performance were identified: achievement of desired portfolio results and achievement of project and program purpose. The results indicate that different portfolio control mechanisms are associated with different performance measures. KEYWORDS: Portfolio, Capital Markets, Portfolio Management, Reporting.

How the ICC Threatens Treaty Norms

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court’s constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim nemo plus iuris transferre potest quam ipse habet, states cannot transfer jurisdictional authority to the supranational court that they themselves do not possess at the time of the alleged offenses. Upon ratification of the Rome Statute, both Afghanistan and Palestine conveyed jurisdiction to the Court, but the scope of that delegation is limited by their preexisting treaty-based constraints. American forces and Israelis remain subject to the exclusive criminal jurisdiction of their own states for criminal offenses committed on the territory covered by those binding bilateral agreements so long as those treaties remain applicable. Hence, the Rome Statute by its own terms does not automatically extend territorial jurisdiction over American forces in Afghanistan or over Israeli citizens suspected of offenses in the Occupied Territory of the West Bank or in the Gaza Strip. Yet, the Office of the Prosecutor uncritically accepts the premise that ratification of the multilateral treaty conveyed indivisible territorial jurisdiction. The ICC is not empowered to sweep aside binding bilateral agreements between sovereign states. By asserting that it has power to abrogate underlying bilateral treaties, the Court undermines ancient precepts of international law and harms the principles of treaty law. The ICC is not constructed as an omnipotent super-court with self-proclaimed universal jurisdiction based upon the presumption that the Rome Statute operates in isolation from other treaty-based constraints on sovereign prerogatives. This Article examines the conflicts between current Court assumptions and the tenets of the Rome Statute. Its final Parts dissect the foreseeable damage caused by the present policy. The conclusion asserts that the Court cannot unilaterally override the validity of existing jurisdictional treaties. The assertion of such powers would violate the Vienna Convention on the Law of Treaties and muddy the existing debates related to resolving conflicts between equally binding treaty norms.

Ancient Maxim, Modern Problems: De Minimis, Cumulative Effects and Risk-Based Regulation

This article considers the questions of when and how the ancient common law maxim de minimis non curat lex – the law does not concern itself with trifling matters – ought to be applied in Canadian environmental law. These questions are important because their answers determine whether certain conduct that results in some level of environmental harm will – or will not – be subject to a given regulatory regime, which in turn creates the potential for environmental degradation through cumulative effects. The first part observes that that there is presently considerable confusion about whether the maxim is even available in the Canadian environmental law context. Concluding that it is under certain legislative circumstances, the second part argues that the prevailing conception of de minimis as a single-step test concerned only with the magnitude of environmental harm in isolation is incorrect; rather, the foundational jurisprudence points to a two-step test that actually considers the potential for cumulative effects. This part also examines recent developments in cumulative effects assessment and the emerging paradigm of risk-based regulation in order to shed some modern light on this ancient maxim’s application. The paper concludes by considering the implications of applying de minimis in this way for regulators, industry and the public.

Contesting Disclaimer-of-Reliance Clauses by Efficiency, Free Will, and Conscience

Mark Twain’s famous remark, “The report of my death was an exaggeration,” has become most apt in recent years as it pertains to the purported demise of the rule of caveat emptor in real estate transactions. An ancient maxim of law, caveat emptor puts a buyer on his guard to discover defects in things purchased, with no general duty by a seller to disclose defects of which he has knowledge. Despite the apparent abrogation of the concept by legislative and judicially-imposed- disclosure obligations, a new phenomenon has emerged that allows a seller of real property, or related real property services, to easily maneuver around the requirement of disclosure through strategic, rent-seeking conduct.

Law of Previous Acquittals or Convictions Ch: Xxx (S. 403) Cr. P. C. 1898

There is an ancient maxim of Latin: Nemo debis bis vexari which means in the English language: A person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged.The same principle Autrifois acquit (formerly acquitted) and Autrefois convict (formerly convicted) is prevailing in the common law. Important principles underlying invocation of this rule is that if such person is tried by a Court of competent jurisdiction for an offence irrespective of the fact whether he is convicted or acquitted he cannot be tried again for the same offence and contemplates of a situation where a person has once been tried by a Court of competent jurisdiction and acquitted by such Court cannot be tried again for the same offence nor for an other offence based on similar facts.Chapter XXIV of Part VI of the Code of Criminal Procedure, 1898 which contains only one section (i.e. section 403 Cr. P. C.) and has exhaustively covered the subject of Double Jeopardy. This paper discusses it in the light of the judicial precedents.

"Ex Desuetudine Amittuntur Privilegia": Rabelais, Urquhart, and Les Clercs

IN Rabelais's Tiers livre, published in 1546, Frere Jan counsels Panurge regarding the desirability of his marrying immediately and then copulating with great frequency: Seulement ayez esguard et consyderation de tous jours bien lier et continuer tes coups. Si tu y fays intermission, tu es perdu, paouvret, et t'adviendra ce que advient es nourrisses. Si elles desistent alaicter enfans, elles perdent leur laict. Si continuellement ne exercez ta mentule, elle perdra son laict et ne te servira que de pissotiere.... [] Je t'en advise, mon amy. J'en ay veu l'experience en plusieurs qui ne l'ont peu quand ilz vouloient, car ne l'avoient faict quand le povoient. par non usaige sont perduz tous privileges, ce disent les (Rabelais 5:208) The best English translators have been uncertain whether the French word clercs should be made to refer to scholars or (more specifically) to clergymen. Donald Frame translates, Thus by disuse are all privileges, so say the clerics (Frame 337). Burton Raffel makes the other choice: And as the scholars say, if you don't use it, you lose (Raffel 313). J. M. Cohen skirts the choice by translating very literally (and not very idiomatically in modern English): Thus by lack of usage, as the clerks say, all privileges are lost (Cohen 363). M. A. Screech is more definite: As the law-clerks say: All privileges are by non-usage, adding the notation 'Privileges are by non-usage' was a legal maxim.' (Screech, Gargantua 512-13; italics in the text). Jacques LeClercq, by implication, also understands his namesake clercs to refer to lawyers--even more specifically, canon lawyers: An ancient of cannon [sic!] law tells us that nonusage of full privileges makes them forfeit (LeClercq 392). Of course, in the early sixteenth century most scholars were, in fact, clergymen of some description, and for many of them the study of both canon law and civil law would have belonged to the preparatory curriculum--as occurred in the case of Rabelais himself. Just what are the status and role of the quoted pronouncement by les clercs, which Jacques LeClercq calls ancient maxim and Burton Raffel has rendered with a version of the modern English proverb Use it or lose it? Let us look at the passage as given in the classic translation by the Scotsman Sir Thomas Urquhart, which appeared posthumously in 1693: Friar John says, This is a certain truth I tell thee, Friend, and doubt not of it; for my self have seen the sad experiment thereof in many, who cannot now do what they would, because before they did not what they might have done. desuetudine amittuntur Privilegia. Non-usage oftentimes destroys ones Right, say the learned of the Law. (Urquhart 2:131; italics in the text). Especially in the Latin form (literally, From disuse are privileges), the opinion that Urquhart's Friar John attributes to the Doctors of the Law is presented as if it will be recognized as a common aphorism. Numerous twentieth-century books of sayings or quotations (including several published in countries where neither English nor French--nor Latin--is widely spoken) designate or categorize the Latin sentence as a legal or simply a maxim--sometimes, even, a proverb. Obviously, Ex desuetudine amittuntur privilegia does not appear in Rabelais's original text of 1546. In fact, I cannot discover any occurrence of the Latin sentence prior to Urquhart's interpolation of it in 1693 - or any more recent occurrence, outside the published collections of sayings and a few direct (and usually inaccurate) references to Rabelais. Rabelais had written only Aussi par non usaige sont perduz tous privileges, ce disent les clercs. A footnote in the standard edition of Rabelais (by Lefranc et al., 1931) calls the French saying an ancienne maxime de droit canonique (Rabelais 5:208). In his modern scholarly edition of Le tiers livre, M. …

The art of observation: William Osler and the method of Zadig.

Excerpt Sir William Osler took as his teaching motto the ancient maxim that the whole art of medicine is in observation (1). Rufus Cole (2) describes how Oslputer put that precept into action and...

Frustration and Its Solution in German Law

The ancient maxim pacta sunt servanda requires faithful performance of contractual obligations, except when physically impossible. The problem, to what extent substantial change of circumstances also should relieve the obligor from the now onerous burden of his obligation, has been put into new and urgent focus by the economic developments of the Twentieth Century. In medieval law, difficultas became an excuse for performance as a direct contribution of canon law' and its ethical outlook, which considered good intention equal to performance. The early codifications of the eighteenth century2 solved the problem more cautiously by means of the clausula rebus sic stantibus-the theory that every contract is subject to the implied condition (operating as a condition subsequent)3 that circumstances in existence at its conclusion would not change. The same theory has been advanced for the interpretation of treaties, the contracts of nations.4 In private law, however, the clausula doctrine lost currency in Europe, particularly in Germany, during the Nineteenth Century. Causes contributing to its demise were the influence of the school of scientific positivism, the advocacy by the historical school of classical concepts, particularly of Roman law, which denied relief for frustration, and emerging concepts of eco-