Bouche De Research Articles

Najmuddin Ath Thufi Mashlahah as Legal Reasoning for Judges' Decisions and Its Contribution to the Reform of Indonesian Islamic Family Law

This article explores the concept of Mashlahah Najmuddin Ath Thufi as a legal reasoning for judges' decisions. The concept of Mashlahah Najmuddin Ath Thufi can be a solution for judges in deciding cases in court. The judges are required to build legal reasoning, who do not have strong legal reasoning can produce decisions that are considered Onvoldoende Gemotiveerd, namely decisions that are insufficient judgment. The question to be answered in this article is how is the construction of Mashlahah according to Najmuddin Ath Thufi in the legal reasoning of judges' decisions? What is the contribution of Najmuddin Ath Thufi's Mashlahah to the renewal of Islamic family law in Indonesia? The method of analysis uses qualitative, while the approach is normative. Data sources are obtained from books, law journals, court decisions and dictates. The results show that, Najmuddin ath Thufi's Mashlahah theory bases the constellation of Mashlahah on the superiority of human reason, based on the interpretation of the Prophet's hadith which reads la dharar wala dhirar. Mashlahah Najmuddin Ath Thufi as the basis of Legal Reasoning for judges' decisions focuses on rechtsvinding (law discovery) and creating new laws (rechtsschepping). Judges because of their position (ambtshalve), are not just the mouth or mouthpiece of the law (bouche de la loi), but become translators or givers of meaning (interpreters). Najmuddin ath Thufi's Mashlahah theory contributes to the reform of Islamic family law in Indonesia through court decisions.

Use of retrotransposon based iPBS markers for determination of genetic relationship among some Chestnut Cultivars (Castanea sativa Mill.) in Türkiye.

The aim of this study was to reveal the genetic relationships among some economically important chestnut cultivars for Türkiye by using retrotransposon-based inter primer binding site (iPBS) markers. In this study, a total of 19 iPBS markers were used to determine the genetic relationships among 11 chestnut cultivars (Castanea sativa Mill.). In the study, chestnut cultivars named Hacıömer, Osmanoğlu, Sarıaşlama, Erfelek, Kemer, Işıklar, Şekerci, Siyah Bursa, Tülü, Bouche De Betizac and Marigoule were the preferred cultivars utilised. Using the online marker efficiency calculator (iMEC), some indices of polymorphism, such as the mean heterozygosity, polymorphism information content, marker index and discriminating power, were determined. In addition, the size ranges of alleles, number of average alleles, number of total alleles, number of polymorphic alleles, and polymorphism rate were determined at a successful level. The chestnut cultivars of Hacıömer and Şekerci were determined to be the most similar cultivars with a similarity coefficient value of 0.924, and they formed a subgroup together with the chestnut cultivars Osmanoğlu and Erfelek, showing close similarity with these two cultivars. The use of iPBS markers in chestnuts in Türkiye was carried out for the first time in this study. The power of iPBS markers to evaluate the genetic relationship for our preferred chestnut cultivars was revealed. For this reason, it has emerged that it will be useful in the molecular characterization of both genotypes in natural chestnut populations and chestnut breeding materials such as varieties and cultivars in chestnut breeding programs.

Identification and Quantification of the Major Phenolic Constituents in Castanea sativa and Commercial Interspecific Hybrids (C. sativa x C. crenata) Chestnuts Using HPLC-MS/MS.

Due to the lack of studies on chestnut metabolites, this study was conducted to identify and quantify the major phenolic constituents in chestnuts. Data were compared with the three most commonly grown interspecific hybrids of C. sativa and C. crenata ('Bouche de Betizac', 'Marsol', and 'Maraval') and three "native" accessions of C. sativa. High-performance liquid chromatography coupled with mass spectrometry was used to identify and quantify these compounds. Four dicarboxylic acid derivatives, five hydroxybenzoic acids, nine hydroxycinnamic acids, and three flavanols were identified and quantified, most of them for the first time. Hydroxybenzoic acids were the major phenolic compounds in all chestnut cultivars/accessions, followed by flavanols, dicarboxylic acid derivatives, and hydroxycinnamic acids. Of all the compounds studied, the (epi)catechin dimer was the most abundant in chestnut. The assumption that cultivars from commercial hybrids have a better and different metabolic profile than "native" accessions was refuted.

Putusan Konstitusional Demokratis Terhadap Sengketa Pemilu Serentak 2024

The Constitutional Court is a judicial institution that has the authority to resolve disputes over general election results. If the election law is not revised, then in 2024 there will be simultaneous elections and simultaneous regional elections. This study is to find out how the challenges of the Constitutional Court are in producing democratic constitutional decisions on 2024 Simultaneous election disputes and to find out how the role of the Constitutional Court in producing democratic constitutional decisions on 2024 Simultaneous election disputes. This type of research is legal research, in the development of legal research methods normative legal research and legal research empirical legal research must be combined or used both because combining the two studies will provide comprehensive research results. The institution as a judicial institution that adjudicates PHPU will face several challenges: 1) The readiness of the Constitutional Court in providing optimal services, 2) The political pressure of the presidential election is so hot, 3) the time and quality of the decision is short. The Constitutional Court's decision must truly reflect a fair decision within the framework of implementing constitutional democracy. A fair decision can only be given by a statesman judge, not merely a judge who is an adherent of the principle of legality who goes too far and becomes the mouthpiece of the law (bouche de la loi), which should be the mouthpiece of substantive justice

Some Mechanical Properties of Chestnut in Relation to Product Processing and Equipment Design

Mechanical properties provide information to design and develop suitable machines (equipment) for processing, transporting, and conveying chestnuts. Four chestnut cultivars that have not been studied before were investigated in the study carried out for this purpose. Some engineering properties of Macit 55, Akyüz, Ali Nihat, and Bouche de Betizac chestnut cultivars were determined and compared. The mechanical properties were determined by rupture force, rupture energy, deformation, and firmness values. The friction coefficients of chestnut varieties on a galvanized sheet, stainless steel, and rubber surfaces were investigated. Mechanical properties were determined using a Universal Testing Machine. The values obtained from the samples were obtained by compression between the parallel plate along the X, Y, and Z axes. For the static friction coefficient, while the galvanized sheet surface had the lowest value (0.145), the rubber surface had the highest value (0.212). For rupture forces, the force required to break the chestnut at the Z loading axis position (714.09 N) was higher than the required force at the Y loading axis position (396.35 N) of the fruit.

Integrating Traditional Wheat-Based Foods with High Health Value Flours: Castanea spp. Agro-Biodiversity in Bakery Products

In European countries, the utilisation of chestnut flours (CF) has been increasing in the bakery industry because the CF ingredients provide not only nutritional and health benefits but also improve organoleptic and health-promoting properties. This work aimed to describe the phytochemical properties and antioxidant capacity of chestnut flours from different Castanea spp. genotypes and origins, studying the effects of the addition of CF to traditional wheat-based cookies on their quality and sensory traits. Commercial chestnut flours were also considered. CF used in addition to wheat-based flours may increase the quality and health-promoting value of bakery products for its many benefits: (i) nutritional and phytochemical value; (ii) zero-Km availability in many producing areas (Europe, Asia, Australia, and North and South America); (iii) for these areas, food security is connected to a vulnerable wheat-based food system. Chromatographic and spectroscopic methods were utilised to assess the composition and antioxidant properties of the considered chestnut flours. The sensory value of the prepared chestnut/wheat-based cookies was also assessed by a panel of common consumers (hedonistic test by a 9-points hedonistic scale). Monoterpenes were the main substances in the flour phytocomplex, reaching 80–90% of the total, followed by phenolics (8–12%) and vitamin C in trace (1–3%). Antioxidant capacity ranged from 9.64 ± 0.96 mmol Fe+2 kg−1 DW (BOUC flour from cv Bouche de Bétizac) to 17.33 ± 1.35 mmol Fe+2 kg−1 DW (CANA flour from cv Canalutta). In this research study, the cookies derived from CANA and BOUC flours were considered the most appreciated products by consumers, with values of 7.09 ± 0.46 and 6.88 ± 0.18, respectively. These results confirmed that integrating phytochemical data with sensory results is very important for food industries to obtain a complete description of the analysed flours and consequently of the derived products to produce new bakery products highly appreciated by consumers with high health value in comparison to the traditional products.

Czy la bouche de la loi mają coś do powiedzenia w demokracji? Ćwiczenie w wyobraźni prawniczej

The article uses the potential of spatial imagination to discuss challenges judicial power and judges face nowadays, due to fierce philosophical and theoretical debates over the future of democracy and various “democratic innovations”. To identify and discuss possible reactions to these new challenges, we refer to the three-level concept of the political universe. It is argued that the “modern” legal and political imagination has neglected the importance of the most basic of these levels, namely the level of commonly shared cultural values. In effect, as Montesquieu famously summarized, judges became “no more than the mouth that pronounces the words of the law”. This traditional view is still persistent in legal debates but proves to be more and more insufficient, as it does not allow lawyers to take an active part in contemporary political and constitutional debates. Unfortunately, the attempts to overcome it are often far from being satisfactory, as they focus on justifying or criticising allegedly inevitable “politicization” of the judiciary. In effect, both images encourage competition rather than a dialogue, which may in fact hinder understanding and responding to new political processes. In the conclusions of the article, we suggest that the history of European political and legal traditions offers a possibility to go beyond such neutral-political opposition towards a more complicated view, which is at the same time more attuned to unending struggles for and with democracy.

Batı Anadolu’da Yeni Belirlenen Bazı Kestane Genotiplerinin Farklı Aşılama Yöntemleriyle Çoğaltılması

Aim of study: In the study, the most successful grafting method and chestnut genetypes that are best adapted to the Düzce Kaplandağı chestnut population were tried to be determined. Area of study: Chestnut seeds used as rootstock material were collected from natural chestnut forests of Kaplandağı, Cumayeri district of Düzce province. Material and methods: In this study, for the first time identified by us, 20 well-known fruit qualities, two locally known (Serdar and Erfelek), and three foreign (Maraval, Marigoule, and Bethizac) chestnut genotypes were used. It was investigated the success of grafting methods by using 25 different chestnut genotypes and three different grafting methods (budding, the cleft and tongue grafting). The seedlings of the Kaplandağı chestnut population were used as the rootstock chestnut genotype. The genotypes which were grafted on the rootstock were types of Kabalak, İbradı, Paşaormanı, Erfelek, Hacıömer, Serdar, Akçakoca 1, Alaplı 1, Çongara, Fındıklı 1, Gümeli 1, Fındıklı 2, Ereğli-Yazıören, Paşaormanı 2, Gümeli black, Fındıklı 3, Ereğli-Nevzat, Gümeli yellow, Akçakoca yellow, Yığılca-Vedat, Yığılca-Çakır, Ibradı 2. and Maraval, Marigoule, Bouche de Bethizac. Main results: It was determined that stabile temperature and humid conditions affected grafting achievement on chestnut genotypes and grafting techniques. While the lowest grafting success was in the budding, the cleft and tongue grafting methods were the same and have a grafting success rate of 63%. Among the chestnut varieties, the Çongara genotypes (98%) had the highest while the Fındıklı 2 genotypes (20%) had the lowest grafting success. As a result, the most successful grafting methods were cleft and tongue grafting, and the most successful grafting genotypes were found as Çongara, İbradı 2 and Alaplı 1. Also, the sapling obtained from the study were taken under ex-situ protection in Düzce University campus as a chestnut orchard. Highlights: Also, two of them (Pasaormanı and Akçakoca 1) are observed to resist against the gall wasp.

Metaphorical Use of Algorithm in Legal Reasoning

The current use of big data in the legal framework suggests the idea of algorithm as a new topos of the legal rhetoric. Indeed, in addition to the “rhetoric of algorithm”, an “algorithm of rhetoric” may also exist, in strict connection with an anthropological structure. Even leaving aside its epistemic value, the algorithm is in fact always experienced by the jurist through a metaphorical process, in a very similar way, for instance, to the metaphorical use of graphs in economics (McCloskey). That said, the reasoning about big data is metaphorical as well, and this allows us to believe that there is still a role for pathos and ethos within the legal reasoning. Moreover, and most importantly, the ideal to which the data-based knowledge (the so called dataism) aims—that is, the pretension of being able to map all that there is to know—is metaphorical, too. In this paper I will discuss algorithms and big data in the guise of new topoi. The aim of this paper is therefore to imagine a philosophical-juridical semiotic by means of which it is possible to highlight the persistent difference between reasonableness and reason in the judge’s work. Vis-à-vis algorithms and big data, as well as the rules of law, the judge does not act as bouche de la loi, but rather practices a reason which is irreducibly rhetoric and related to the humanities.

Development of High-Density Genetic Linkage Maps and Identification of Loci for Chestnut Gall Wasp Resistance in Castanea spp.

Castanea sativa is an important multipurpose species in Europe for nut and timber production as well as for its role in the landscape and in the forest ecosystem. This species has low tolerance to chestnut gall wasp (Dryocosmus kuriphilus Yasumatsu), which is a pest that was accidentally introduced into Europe in early 2000 and devastated forest and orchard trees. Resistance to the gall wasp was found in the hybrid cultivar ‘Bouche de Bétizac’ (C. sativa × C. crenata) and studied by developing genetic linkage maps using a population derived from a cross between ‘Bouche de Bétizac’ and the susceptible cultivar ‘Madonna’ (C. sativa). The high-density genetic maps were constructed using double-digest restriction site-associated DNA-seq and simple sequence repeat markers. The map of ‘Bouche de Bétizac’ consisted of 1459 loci and spanned 809.6 cM; the map of ‘Madonna’ consisted of 1089 loci and spanned 753.3 cM. In both maps, 12 linkage groups were identified. A single major QTL was recognized on the ‘Bouche de Bétizac’ map, explaining up to 67–69% of the phenotypic variance of the resistance trait (Rdk1). The Rdk1 quantitative trait loci (QTL) region included 11 scaffolds and two candidate genes putatively involved in the resistance response were identified. This study will contribute to C. sativa breeding programs and to the study of Rdk1 genes.

Castanea spp. Agrobiodiversity Conservation: Genotype Influence on Chemical and Sensorial Traits of Cultivars Grown on the Same Clonal Rootstock.

A large species diversity characterises the wide distribution of chestnuts in Asia, North America, and Europe, hence reflecting not only the adaptation of the genus Castanea to diverse environmental conditions, but also to different management strategies encompassing orchards. The characterisation and description of chestnut populations and cultivars are crucial to develop effective conservation strategies of one of the most important Italian and European fruit and wood species. Chestnut cultivars grown in the same pedoclimatic conditions and on the same clonal rootstock were characterised with sensory, spectrophotometric, and chromatographic analysis to determine the phytochemical composition and nutraceutical properties. A multivariate approach, including principal component analysis and conditional inference tree models, was also performed. The ease of peeling, seed colour, and intensity of sweetness were the sensory descriptors that allowed us to differentiate C. sativa cultivars. Antioxidant capacity ranged from 9.30 ± 0.39 mmol Fe+2 kg−1 DW (‘Bouche de Bètizac’) to 19.96 ± 1.89 mmol Fe+2 kg−1 DW (‘Garrone Rosso’). Monoterpenes represented the main component, reaching 88% for hybrids, followed by polyphenols (10–25% for hybrids and chestnuts, respectively). A multivariate approach showed that phenolic acids and tannins were the bioactive classes with the highest discriminating power among different genotypes, and that genotype is a significant variable (p < 0.05). In addition, most of the analysed chestnut cultivars showed a content of bioactive compounds similar to or higher than the main hazelnut, walnut, and almond varieties. Chestnut agrobiodiversity could be intended as strictly associated to the genotype effect and underlines the large variability within the genus Castanea, and therefore, the importance of in farm and ex situ conservation of local germplasm is part of a global strategy aimed at increasing the levels of agrobiodiversity.

MENGGAGAS CITA MORAL DALAM PENAFSIRAN HUKUM HAKIM

In implementing his duty, a judge shall not only be considered as the mouth of acts (la bouche de la loi). The duty of judge is also to interpret law facts in concreto with abstract regulations. It has to be noted that jurisprudence is a hermeneutic exemplar in optima forma which is internalized in law of society. Accordingly, judge may not only interpret the juridical text, but also interpret the fact that results legal problems in order to solve the legal problems. The interpretation of the judge which contains the idea of moral is a concept of law as interpretation/processes of interpreting and also a concept of law as a value based on a statement of ’law as what ought to be in moral or ideal precepts’. This article argues that building the judge’s legal interpretation means developing judge jurisprudence using the dynamic approach in legal hermeneutics. Such approach accomodates the ideal of law in judge’s interpretation that includes open-mindedness and humanistic in moral perspective.

Transcriptome characterization and expression profiling in chestnut cultivars resistant or susceptible to the gall wasp Dryocosmus kuriphilus.

The oriental gall wasp Dryocosmus kuriphilus represents a limiting pest for the European Chestnut (Castanea sativa, Fagaceae) as it creates severe yield losses. The European Chestnut is a deciduous tree, having major social, economic and environmental importance in Southern Europe, covering an area of 2.53 million hectares, including 75,000ha devoted to fruit production. Cultivars show different susceptibility and very few are resistant to gall wasp. To deeply investigate the plant response and understand which factors can lead the plant to develop or not the gall, the study of transcriptome is basic (fundamental). To date, little transcriptomic information are available for C. sativa species. Hence, we present a de novo assembly of the chestnut transcriptome of the resistant Euro-Japanese hybrid 'Bouche de Bétizac' (BB) and the susceptible cultivar 'Madonna' (M), collecting RNA from buds at different stages of budburst. The two transcriptomes were assembled into 34,081 (BB) and 30,605 (M) unigenes, respectively. The former was used as a reference sequence for further characterization analyses, highlighting the presence of 1444 putative resistance gene analogs (RGAs) and about 1135 unigenes, as putative MiRNA targets. A global quantitative transcriptome profiling comparing the resistant and the susceptible cultivars, in the presence or not of the gall wasp, revealed some GO enrichments as "response to stimulus" (GO:0050896), and "developmental processes" (e.g., post-embryonic development, GO:0009791). Many up-regulated genes appeared to be transcription factors (e.g., RAV1, AP2/ERF, WRKY33) or protein regulators (e.g., RAPTOR1B) and storage proteins (e.g., LEA D29) involved in "post-embryonic development". Our analysis was able to provide a large amount of information, including 7k simple sequence repeat (SSR) and 335k single-nucleotide polymorphism (SNP)/INDEL markers, and generated the first reference unigene catalog for the European Chestnut. The transcriptome data for C. sativa will contribute to understand the genetic basis of the resistance to gall wasp and will provide useful information for next molecular genetic studies of this species and its relatives.

Biochemical characterization of leaves, burs and shells of ‘Bouche de Bétizac’ chestnut cultivar

Biochemical characterization of leaves, burs and shells of ‘Bouche de Bétizac’ chestnut cultivar

Sensibly and appropriately the judge considered… A corpus-based study of sentence adverbs in judicial language

The paper presents a contrastive corpus-assisted discourse study of sentence adverbs in Italian, English and Spanish judicial discourse.The hypothesis guiding the study is that, although judges’ attitude is supposed to be impartial, as they represent the so-called “bouche de la loi”, their opinion is present in the texts and sentence adverbs are one of the pragmatic vehicles used to express their stance.The corpus used for the analysis is a trilingual subcorpus of COSPE (Pontrandolfo 2016) that has been POS-tagged (194,000 tokens for each language). The focus has then been placed exclusively on adverbs ending in -mente and -ly for being those that more than others contribute to express evaluative nuances in judicial discourse.Results demonstrate that quantitatively adverbs in -mente/-ly do not account for a significant percentage, which is in line with Biber et al.’s (1999) findings in other registers (conversation, academic prose). However, qualitatively and discursively, these adverbs play a pivotal role at a pragmatic level, since they contribute to judicial argumentation (cf., among others, Mazzi 2014).

MENGKAJI LEGALITAS PERATURAN MAHKAMAH AGUNG NOMOR 2 TAHUN 2012 TENTANG PENYESUAIAN BATASAN TINDAK PIDANA RINGAN DAN JUMLAH DENDA DALAM KUHP

Besides court function, the Supreme Court also has rule function, counseling function, supervisor function, and administrative function. Judges as an organ on Supreme Court must be differentiated with Supreme Court as a State Institution. Judges can be a law maker on their verdict (Judge made-law), because Judges are not only a mouthpiece of the law (la bouche de la loi), instead they also considered to know the law (Ius Curia Novit). However, the Regulation of Supreme Court as an implementation of its rule function can’t be stated as a law making (rechtsvinding), because the Regulation of Supreme Court is not a part of Law Making, but rather Rule Making. Regulation of Supreme Court Number 2 Year 2012 about Adjustment on the Limitation of Minor Crime and Fine on KUHP is one of the regulation that has been made by the Supreme Court as a State Institution. This article will analyze the legality of the Regulation of Supreme Court based on the authority given by the act or constitution, and also analyze it from the regulation concerning the drafting of act.

Interpretation and Improvisation: The Judge and the Musician Between Text and Context

This paper analyses the paradigms of interpretation and the evolution of the creative processes in music and law. Whether it is matter of a score or a law, the text is reborn through the work of the interpreter who, in dealing with the epistemological problem of the understanding, has to harmonize the purity of the philological reconstruction of the object with the need to actualize its sense. Moving from the creative character of every interpretation—neither the musician can be reduced to a mere executor of a concatenation of musical symbols on the staff as Stravinsky wanted nor the judge may be conceived as a bouche de la loi according to Montesquieu’s theory—this work, after having discussed Gadamer and Betti’s hermeneutical approaches to music and law, focuses on the issue of the limits to the interpreters’ freedom. The interpretation here proposed revolves around improvisation, seen as a typical cultural practice of the aesthetic dimension of music. Improvisation, which from baroque to jazz does not correspond to the realm of absolute freedom, is used as a trait d’union in order to make a comparison with legal experience. This is particularly true with the development of case law, which becomes increasingly problematic especially in the light of “liquid modernity”, where the “polytheism of values” has been gaining strength. Seen from this perspective, the comparison between the judge and the musician in their activity as interpreters of a formalized system of signs highlights the controversial relationship between form and creativity, the accuracy of the text and the requisites deriving from the social context, certainty and justice.

PENJATUHAN PIDANA DI BAWAH ANCAMAN PIDANA MINIMUM DARI KETENTUAN UNDANG-UNDANG NO. 35 TAHUN 2009 TENTANG NARKOTIKA

This research aimed to investigate the considerations of the judges in stating the sentence which was under the minimum criminal threat as stated in the Ordinance No. 35 of 2009 concerning narcotics: and to investigate the impacts of the criminal punishment of the judges which was under the minimum criminal punishment concerning the legal principles. The research was a normative and empirical research, and the technique of analyzing the data both the primary and secondary data was a qualitative technique. The results of the analysis were presented descriptively in order to illustrate the bases of the judges’ consideration in deciding in the Criminal punishment which was less than the minimum criminal punishment in the their sentence no. 17/Pid.B/2014/PN.Pinrang, less than minimum punishment and the legal principles. The research result indicates that bases of he consideration of the judges in stating the punishment less than the minimum sanction in the sentence No. 17/Pid.B/2014/PN.pinrang were the freedom principles of the judges in doing the legal softening and the legal construction by considering the justice sense: meaning when the legal construction by considering the justice sense: meaning when the legal certainly was in opposite to the justice, the justice should be given a priority, since the judges were not the trumpets of the laws (bouche de la loi or spreekbuis van de wet).

The Constitutional Justice and Protection of the Human Rights (The Constitutional Court of Republic of Macedonia - Dilemmas and Prospects-)

An unusual mystique envelops the institute of judicial review, even after its 200 years practicing. The conventional story for its appearing is tied to the case Marbury v. Madison from 1803 and the inventive judgment of Chief Justice Marshall which ‘insidiously’ usurps the authority of the courts to refuse the application of unconstitutional laws. It seems that the argumentation of the judgment Marbury v. Madison produces more dilemmas than it solves, regarding the institute judicial review. Thus, Marshall’s thesis “It is the courts jurisdiction to say what is law”, delicately imposes the question whether that court authorization equally refers to the Constitution. However, even though it is considered a masterpiece of political maneuvering, the judicial precedent in the case Marbury v. Madison from 1803 is deemed a true beginning of constitutional review in USA and in the whole constitutional history of the modern world.The development of constitutional review in the European countries completely deviates from the accepted idea and practice of judicial review by the courts on the American continent. The review of the constitutionality of laws in Europe met strong resistance in both the legal and political theory and the practice. The point of view that the passed laws represent the general will, or the expression of the sovereignty of the state, and the limitation of the role of the judges to application of the passed laws in specific cases, leaves the judges without the possibility to further explore the will of the lawmaker and to “diagnose the pathology” of the system. The inability to enact the system of control of constitutionality of law, was frequently argumented with its incompatibility with the principle of people’s sovereignty. Until the adopting of the Constitution of Austria in 1920, which implements the control of constitutionality by the Constitutional court, the European countries will remain crucified between the need of an institution for control of constitutionality of law on one side, and the respect of the long constitutional tradition and the thesis of Montesquieu that “the judicial power is no more than the mouth of the law (bouche de la loi)”. DOI: 10.5901/ajis.2015.v4n3s1p384

Legal Stereotypes in the Case Law from a Comparative Family Law Perspective

The aim of this paper is the analysis of gender stereotypes in family case law, especially to the traditional gender roles: male-female, husband-wife, father-mother. Indeed, analyzing the grounds of the judgments in an area with a strong influence of political, philosophical, religious and social issues as family law, we find that stereotypes, especially gender stereotypes, could hide themselves behind apparently neutral concepts. But what is a “stereotype”? Especially a “gender stereotype”? It concerns the sex of a person, especially his or her failure to conform with socially accepted sexual behaviour about what “real” men or women do or don't do.For instance in civil law systems themselves, such as in France, nowadays, the ideology related to the juge est-il la bouche de la loi, implemented during the French Revolution, justifies the synthetic model of French judgments, showing only hints of the facts of the case and the legal reasoning of the judge. On the contrary, in Germany, according to the systematic and phylosophical tradition, judges often describe the complexity of their logical and juridical reasoning. In the Common Law System in the case law method the “direct presence of facts distinguishes reasoning with previous decisions in the "classical" common law context from reasoning statutes or the constitution”, furthermore judges have to detail each logical step according to the distinguishing principle. According to this pattern of judgments it is possible to find gender stereotypes in the legal reasoning because the pattern of decisions allows judges to express their own opinions in “rainbow families” cases.