Development Of Jurisprudence Research Articles

La Risonanza Magnetica Nucleare nei pazienti portatori di Dispositivi Impiantabili attivi: implicazioni legali

[Nuclear Magnetic Resonance in patients with Active Implantable Medical Devices: legal implications] The Italian Ministerial Decree 02.08.1991 prohibits to perform Nuclear Magnetic Resonance (NMR) in patients with Active Implantable Medical Devices. This Decree is still in force despite the commercialization of new devices that, according to manufacturer, are compatible with NMR. The lacking of Decree updating generates a variety of behaviors, since physicians themselves are not in agreement concerning the decisions to take, especially in those cases in which there is uncertainty about the compatibility of the device. In these cases, the decision is left to the physician. This article provides a broad overview on the evolution of jurisprudence concerning the role and the responsibilities of physicians. Starting from the right to selfdetermination and the right to health guaranteed by Italian laws to the patients, informed consent was rendered compulsory, hypothesizing a different relationship between patients and doctors, more patient- than doctor-centered. However, rather than creating a more mature relationship among the two players, jurisprudence has evolved in the sense of growing responsibilities given to physicians, who are now harassed by several lawsuits. We hope that the still evolving healthcare jurisprudence will create a more serene atmosphere for healthcare professionals.

Medical Liability: The Current State of Italian Legislation.

The professional liability of healthcare professionals is a decidedly current issue. In the past decade, litigation for alleged medical malpractice incidents has increased exponentially in Europe. In Italy, the last 20 years have been witness to significant upheavals in this sense. In this article, we analyse the evolution of professional liability legislation in Italy, as well as addressing, in some detail, the changes introduced by Law 189/2012, with which the Italian legislators radically revolutionized the medical liability sector. Particular attention is dedicated to the jurisprudential developments most affected by this reform.

Factoring in the Cost of Violence: the Relevance of Family Violence in Determining Property Settlements Under the Family Law Act

There is now a strong body of research, which shows that the impacts of family violence go beyond emotional and physical harm, and that family violence has significant economic implications for individuals, families and the community, particularly women. For example, violence is the key cause of women’s homelessness in Australia, and a leading cause of preventable death, disability and illness for women. It has also been found to have significant implications for women’s engagement in education and employment. Studies have also shown that the experience of severe spousal violence is linked to poorer outcomes for women when negotiating family law property settlements. Despite this, the Family Law Act 1975 does not explicitly deal with the relevance of family violence in family law property disputes, and the case law dealing with this issue has proven for many to be unclear and inaccessible. The purpose of this paper is to refocus attention and reinvigorate discussion on this issue, and to highlight what more can and should be done to improve legal responses to violence in the context of family law property proceedings. The paper looks firstly at the development of jurisprudence in the family law courts on this issue; then based on a review of recent first-instance judgments, looks at how this has been put into practice in recent times. Finally, I set out some options for reform to improve the family law system’s response to the relevance of family violence in determining property settlements under the Family Law Act.

Moiwana Village v. Suriname: A Portal into Recent Jurisprudential Developments of the Inter-American Court of Human Rights

On June 15, 2005, the Inter-American Court issued its judgment in Moiwana Village v. Suriname, which held Suriname responsible for numerous human rights violations and ordered several remedial measures. In a separate opinion, one of the Tribunal's veteran judges, Ant?nio Can?ado-Trindade, wrote that the case raises issues of great transcendence. Certainly, the decision illustrates several of the Court's latest jurisprudential developments, and navigates a few rising socio-political tides in South and Central America. This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal constructions in response to such facts; c) foreshadows a significant evolution with respect to elements of the Tribunal's more traditional jurisprudence; and d) reflects, nevertheless, a prevailing caution regarding other aspects of legal analysis.

Towards Participatory Democracy, or Not: The Reasonableness Approach in Public Involvement Cases

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution require the national and provincial legislative bodies to facilitate public involvement in their legislative and other processes. This article considers the jurisprudence developed by the Constitutional Court thus far in the five cases concerning the facilitation of public involvement in legislative decision-making processes. The court adopted a reasonableness standard of review for purposes of determining whether, in each case, the constitutional obligation to facilitate public involvement has been met. Drawing on literature and a comparison with work in the field of socio-economic rights, I argue that to be meaningful and effective, a reasonableness enquiry requires a substantive engagement with the purposes underlying the relevant provision[s] in the Constitution. In the first two public involvement cases, I contend that the court’s development of the reasonableness enquiry was promising, as it sought to engage substantively with the understanding of democracy that is envisaged in the Constitution. The court developed an approach to the use of reasonableness, as a standard of review, in a manner that achieves participatory democracy, as an element of South Africa’s deep vision of democracy envisaged in the Constitution. However, unfortunately, the last three public involvement cases tend to show the court as working with a compliance- or process-oriented reasonableness enquiry. The court here evinces a weak engagement with the purposes and values which the constitutional obligation to facilitate public involvement seeks to achieve. I argue that, for the future development of jurisprudence and our constitutional democracy, the court should revert to its earlier coherent and constitutionally principled approach.

Texas groundwater rights and immunities: from East to Day and beyond

For well over a century, the debate has raged over what interest, if any, landowners possess in the groundwater beneath their property, as well as what degree of tortious immunity a neighboring landowner enjoys for draining adjoining groundwater. After the Texas Supreme Court’s 2012 decision in Edwards Aquifer Authority v. Day, and the Texas Legislature’s 2011 amendments to the Texas Water Code, these debates appear to have been finally settled—for now! This article traces the jurisprudential development of Texas groundwater law, from its earliest origins in ancient Rome through to the most influential and substantive decisions of the Texas Supreme Court and legislation from the Texas Legislature. It also examines what cases are on the horizon that may yet affect Texas groundwater law in the coming years. Citation: Drummond DO. 2014. Texas groundwater rights and immunities: from East to Day and beyond. Texas Water Journal. 5(1):59-94. Available from: https://doi.org/10.21423/twj.v5i1.7013.

Las vicisitudes de la protección de la vida y la dignidad humana en el ordenamiento europeo, leídas de la Declaración Final de la XII Asamblea General de la Academia Pontificia para la Vida (2006) sobre «El embrión humano en la fase de preimplantación»

En el presente trabajo se hace referencia a la protección de la vida humana en el ordenamiento europeo y a la vez se hace un análisis del concepto de dignidad humana en Europa y a su evolución histórica y jurisprudencial

Method and Culture in American Constitutional Law: A Critique of Proportionality and Constitutional Culture

This is a review of Moshe Cohen-Eliya’s and Iddo Porat’s book, “Proportionality and Constitutional Culture”. The authors’ project is to explain proportionality’s origins, especially as embedded in political culture and jurisprudential development. They aim to understand why proportionality has successfully spread from Germany to the rest of Europe, Canada, South Africa, India, Israel, and international legal instruments, but has not caught on in American constitutional law, which employs balancing as a mode of constitutional analysis. The authors argue that proportionality and balancing are paradigmatic of two distinct legal cultures. Proportionality is best understood as the centerpiece of a “culture of justification,” that is a demand that government offer justifications for its actions. Balancing, however, is a doctrine whose role is relatively marginal in the United States, part of a legal culture that the authors define as a “culture of authority,” that is a focus on whether the state acted within the scope of its legal authority without examining the substantive merits of the action. These cultural differences also explain American skepticism about human rationality and its preference for markets, the common law, popular democracy, and suspicion of government generally, which, in turn, generate a preference for markets over regulation, separation of powers over unified government, and federalism and decentralization over centralized control. The Book’s argument is compelling as it is elegant. But elegance has its price. As it reveals, it also obscures. By distilling centuries of cultural evolution to a single distinction (authority/justification), the authors necessarily downplay past and present contestations in American constitutional law. Contrary to the authors’ claims, American constitutional law has, at different points in time, embraced and rejected balancing and proportionality; it has embraced and rejected a culture of authority; it has embraced and rejected a culture of justification; it has embraced and rejected regulation, centralization and decentralization. Although the Book highlights important features in American constitutional law, linking them to the development of balancing, doubts remain whether its thesis delivers the explanatory punch it promises. After laying out the contested terrain of American constitutional law, I offer two reasons why proportionality has not been embraced in the U.S. First, proportionality was incorporated into post World War Two legal thinking at a time when the U.S. was already locked into a different constitutional trajectory. Second, given the similarities between proportionality and balancing, there are few incentives, and serious legitimacy costs, for importing proportionality as a central doctrine of American constitutional law.

El estatuto jurídico del embrión en la Jurisprudencia del Tribunal Constitucional español

El presente trabajo versa sobre la relevante jurisprudencia del Tribunal Constitucional en relación al estatuto jurídico del embrión, a los distintos niveles de protección del embrión y sobre las importantes consecuencias jurídicas derivadas de este desarrollo jurisprudencial

Правовая система и правовая жизнь общества

In the terms of globalization of modern society jurisprudence faces the goal of searching of categories fully reflected these processes and challenges. The notions “legal system” and “legal life” highlight among such categories. They compete with each other in some ways. But it is necessary to distinguish them because they have different senses. Legal system is directed to the organizing of legal life of society while legal life contains the sources (roots) of development of legal system. Besides legal life unlike legal system includes all legal phenomenons — both positive and negative (including criminality) that should be searched in complex. So, substantial analysis of legal life of society is the next step in the development of jurisprudence (first of all, theory of law) not only from formal-legal but also from cultural positions. It demands applying of necessary methodological recourses. Such approach gives a possibility to analyze positive (lawful) and negative (unlawful) elements of legal life in their interaction and transforming negative part into negative (for example, processes of criminalization) and vice versa, negative part into positive (decriminalization, legalization, pardon, ext.).

A Necessary Look at Necessity Jurisdiction

While the doctrine of necessity jurisdiction is relatively new globally, it is fast garnering academic, legislative, and judicial acceptance. However, its exact nature and appropriate scope of application occupy a fringe position in both jurisprudence and literature. This article is an attempt to explore the nature and scope of the doctrine with a view to suggesting appropriate limits to its application. It explores the doctrines legislative and jurisprudential development in Canada as well as its international validity.

Judicial Approach in Realising Health Rights: Indian Perspective

Health is often considered as a scientific discipline that requires expertise, knowledge and skill of medicine confined to the medical professionals and scientists but it encompasses socio-economic and political determinants as well as defined by the WHO. Health and right to health is a social and political right that has been debated but often undermined by the philosophers and thinkers. Right to health has been often limited to right to healthcare that has often confined to the equitable access and availability of healthcare services. Various philosophers and their philosophies have often undermined health as a component to be looked upon as social good be it the Utilitarian Philosophy or Rawlsian Social Justice Theory. This article aims at highlighting the importance of health as a right at international arena that has been duly acknowledged at various international conventions from where the very concept of health has gone beyond natural right to become legal as well as fundamental right as endorsed by the Indian Constitution under Article 21. The paper aims at reflecting the jurisprudential evolution of health rights and its duly incorporation into Indian Judicial approach as reflected in the decisions of Honourable Supreme Court as well as respective High Courts in India.

El régimen constitucional de los derechos en Bolivia: de la Constitución a la jurisprudencia. Un breve repaso sobre su aplicación

Este es un artículo sobre el desarrollo jurisprudencial de los derechos proclamados en la Constitución boliviana. El artículo se ha limitado a estudiar los aspectos que la jurisprudencia ha considerado formales y, en consecuencia, comunes a todos los derechos de índole constitucional en el ordenamiento boliviano. A cinco años de la entrada vigor de la Constitución de 2009, el Tribunal Constitucional ha desarrollado un vasto cuerpo de jurisprudencia sobre los proclamados por ella. Sin ser un análisis exhaustivo, el artículo pretende sólo hacer un breve repaso de ese desarrollo.

El trabajo de los extranjeros en la jurisprudencia

Este es un artículo sobre el desarrollo jurisprudencial derivado de la situación del no nacional en el ámbito de las relaciones laborales y de Seguridad Social.

Derecho a la privacidad, libertad de expresión e interés público: el caso Cordero con Lara y otros

In August, 2013, the Supreme Court of Chile decided a criminal case regarding violation of privacy. The case was about a psychiatrist that had been secretly recorded by a television show issuing false medical leaves. In its decision, the Supreme Court abandoned the traditional supremacy of the right to privacy pointing out that when there is a public interest at stake, the former should be disregarded for the benefit of citizens to know the truth. This article analyses concepts such us privacy, freedom of expression and access to information, as well as their normative and jurisprudential development within Humans Rights practice in a national context. It also emphasizes that this decision is cornerstone for the protection of the freedom of expression and the public interest.

RELEVANSI HUKUMAN CAMBUK SEBAGAI SALAH SATU BENTUK PEMIDANAAN DALAM PEMBAHARUAN HUKUM PIDANA

The use of Islamic law as the material for criminal law reformation is one of the main charac-teristics of Pancasila law state which guarantees the freedom of religion. The existing applicable law should be consistent with the Indonesian society legal ideals, the values of Islamic law must be reflected in the national law as the materialization of legal ideals. Canings is one of the punishment types prescribed in the Qur’an and Sunnah. Article 2 of RKUHP contains material legality principle approves the existing law in the community/society or adat criminal law in order to respect the di-versities/ plurality law in Indonesia. Accordingly, the regulation of criminal act and criminal sanc-tion are mandated to the development of jurisprudence and regional regulation.Keywords: Canings, criminal law reform, Islamic law

The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today

This article discusses aspects of the origin and development of jurisprudence relating to the prosecution of sexual and gender-based violence (SGBV) in the context of international criminal law. It examines a selection of archival material from the United Nations War Crimes Commission (UNWCC) and other bodies connected to it, noting that the UNWCC was the first multinational criminal law organization to explicitly endorse SGBV crimes as international crimes. UNWCC-supported trials in both Europe and Asia suggest that rape committed in the context of armed conflict or situations of mass violence was punishable as a serious crime nearly 70 years ago. Moreover, many of the theories of liability used by contemporary tribunals today were used in the UNWCC-supported cases. The authors maintain that the UNWCC archives are not only valuable for tribunals prosecuting conflict-related SGBV cases today, but the jurisprudence emerging from UNWCC-supported cases may also be quite relevant to contemporary policy debates.

Hermeneutical and analytical jurisprudence

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

Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass

It has been suggested that the whole of the private law may be regarded as the law of consent. The law of torts is based on the principle that subject to the law of the land, no one has the right to interfere with another person's physical and economic integrity and freedom without that person's consent.This article examines the historical and jurisprudential evolution of the concept of consent in the law of trespass to person with an emphasis on issues associated with consent to, and refusal of, medical treatment. Consent to treatment and refusal of treatment have been regarded merely as obverse sides of the same coin. One of the premises of this article is that the law is inconsistent insofar as it considers consent to be a relative value while regarding refusal as an absolute and inalienable right.

Matter of Discretion: The De Facto Abolition of the Mandatory Death Penalty in Barbados – A Study of the Boyce and Joseph Cases

The rising calls worldwide for a moratorium on the death penalty parallel the judicial erosion of the mandatory death penalty (“MDP”) in a number of Commonwealth Caribbean nations. The appellate proceedings of Attorney General of Barbados versus Jeffrey Joseph and Lennox Ricardo Boyce illustrate the jurisprudential evolution of the MDP in the following areas: (1) constitutionality; (2) deadlines for appeal; (3) the judicial review of executive clemency proceedings; and (4) petitions to international human rights organizations. This article explores the advent of a new chapter in Commonwealth Caribbean MDP jurisprudence through Attorney General v. Joseph, a seminal opinion by the Caribbean Court of Justice (“CCJ”). In this case, the CCJ augmented the procedural safeguards that have given rise to the de facto abolition of the MDP in Barbados and other Commonwealth Caribbean nations. This article also explains the intricate balance, in MDP appeals, of (1) constitutional and international law and (2) judicial review of executive action. The article concludes that the CCJ (once touted as a “hanging court”) has actually worked to secure the role of judicial discretion in MDP appeals and to insure the de facto abolition of the MDP.