Development Of Jurisprudence Research Articles

Success in small places: NCB forfeiture thrives in Manitoba, a small but mighty Canadian jurisdiction

Purpose This paper shows how a small jurisdiction can apply well-designed non-conviction-based (NCB) forfeiture provisions with a dedicated team to have a meaningful impact on financial crime. This paper aims to examine developing jurisprudence, legislation and case law to explore how the NCB laws work. Finally, this paper examines a relatively new area of law for Canada, unexplained wealth orders (UWOs). This paper discussed three recent cases in Western Canada currently before the courts. Design/methodology/approach This paper considers legislative and jurisprudential developments relevant to NCB or civil asset forfeiture and in particular considers very recent developments involving UWOs. Findings This paper shows how a small jurisdiction can apply well-designed NCB forfeiture provisions with a dedicated team to have a meaningful impact on financial crime. Research limitations/implications Some jurisdictions, like the UK, have experienced court losses with their UWO process. Canadian law may have a modest pathway to success in this area, although our jurisprudence is very much in development. Practical implications Manitoba is a small jurisdiction with limited resources who are finding ways to have an effective impact on financial crime through the careful application of use of conviction-based forfeiture. Social implications Financial crime has an outsized impact on society. This paper shows some of the techniques available to disrupt financial crime. Originality/value This paper incorporates developments in 2024 that have not yet been examined.

Gender Equality Through Abortion Rights: Exploring the Constitutional Framework and Social Justice

This paper examines the legal protection of the right to abortion under the U.S. constitutional framework and its impact on women's equality. The study traces the historical and jurisprudential development of the right to abortion and examines the impact of restricting this right on women's education, employment, and overall social justice. This is achieved through the analysis of relevant legal documents. The findings indicate that the protection of the right to abortion is crucial for the assurance of women's autonomy in matters of reproduction, and has a substantial influence on their educational and economic prospects. The paper concludes that the constitutional protection of abortion is a crucial step in achieving gender equality and social justice. It is incumbent upon governments and courts to promote gender equality and social justice by introducing legislation to protect the right to abortion and by creating social security systems. The following section will examine the aforementioned topic in greater detail.

Reconciling Cultural Values with Legal Principles: Traditional African Justice Systems in Contemporary Context

This comprehensive study delves into the fundamental principles of the traditional African justice system, juxtaposing it against the broader philosophical and jurisprudential evolution of the concept of justice. Drawing on a robust literature review, the article uncovers the unique features that set African justice mechanisms apart from formal court systems - the central role of community leaders, active community participation, and a focus on reconciliation and harmony. Tracing the concept of justice from ancient Greece to the present day, the study situates the African approach within this broader context. It explores diverse conceptions, from natural justice to economic, social, and corrective justice, and how they have been interpreted and applied in the African context. Crucially, the article reveals how traditional systems have often filled the gap between community needs and formal legal services. The findings suggest that the guiding principles of reconciliation and community harmony, which underpin the African justice model, offer invaluable insights for developing more holistic and inclusive justice systems. In an era of globalization, these insights could inform the pursuit of social cohesion and the common good, presenting a compelling alternative to the individualistic orientations of mainstream justice frameworks. Through its in-depth analysis and interdisciplinary approach, this study makes a significant contribution to the understanding of traditional African justice, its resilience, and its potential relevance in the contemporary world. The article's rich, sharp, and well-crafted narrative offers policymakers, scholars, and practitioners a vital resource for exploring innovative pathways to justice that prioritizes community-centric values.

From Legal Positivism to Neo-Liberal Scientism

Despite decades of contentions between moral legalists and legal positivists about the place of morality in law, moral law has vehemently stood out as the end of history. The scientific experiment has despondently failed to logically evict the moral law from the jurisprudential discourse. This research article posits that moral law is the End of History as far jurisprudential evolution is concerned. It argues that the mechanization of law through the positivistic experiment is a moral debacle dented with logical inconsistencies and insurmountable fallacies. It thus uses the inseparability thesis to demonstrate the pivotality of moral law in every positive jurisprudence superstructure. It contends that law appeals to our moral sensibilities because it pre-supposes a conscience in the law giver, the law enforcer and the citizen who is supposed to abide by the law. This ought necessity therefore makes the trio morally credible to legislate, enforce the law and be legally bound by the principles and precincts established by the law.

Standard-Essential Patents in India: An Analysis of Key Cases

Enforcement and interpretation of Standard-Essential Patents (SEPs) and their terms of licensing have been challenging courts across the globe. SEPs come under the purview of both intellectual property rights and competition law making it challenging for courts. India, with its growing telecommunication industry, has been becoming a battleground for SEP litigation. This paper encapsulates India’s growing jurisprudence on Standard-Essential Patents (SEPs). The cases analysed in this paper illustrate the intricate challenges and jurisprudential developments in the field of SEPs.

The Role of Roman Law in the Formation of the State and Modern Law

Abstract The research aims to determine the role that Roman law played in the development of modern jurisprudence. Several methods of theoretical cognition were used in the course of the study, such as analysis, synthesis, comparison, specification, and generalization. As a result, some conclusions have been reached, in particular, that the mechanisms and principles of the Roman legal order, which have existed for many centuries, remain relevant in the modern legal context, and have influenced the formation of political and institutional structures, especially in the field of market relations and economic development. In addition, the study identifies how different branches of Roman law have influenced the further development of jurisprudence. Roman public law (ius publicum) influenced the development of constitutional law in modern countries by regulating relations between the state and citizens. Roman private law (ius privatum) defined the foundations of modern civil law systems, regulating the rights and obligations of citizens among themselves. Also, with the development of trade in Rome, the concept of ius gentium or “law of nations” emerged, which became the basis of modern international law through the formalization of rules and regulations governing the international exchange and circulation of goods.

The Digitalisation of Tools for Workers’ Representation in Europe and Spain: A First Approach

Abstract The unstoppable digitalisation of work also brings with it alterations at the collective level of labour relations. On the one hand, the dispersal of the workforce entails the breaking of traditional ties of proximity, which engendered solidarity among workers. On the other hand, however, new technologies can contribute decisively to the development of representation activity, also being a fruitful field for collective bargaining. Through a synthetic examination of comparative law, several of these possibilities are presented, and how they fit with Spanish law is analysed. Among the subjects addressed are digital tools that can favour tasks in representation. In addition to the legislative dimension, the study takes into account the latest developments in jurisprudence and collective bargaining.

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

Earth jurisprudence in South America: Trends and developments

This article aims to present an analysis of the evolution and contributions developed and integrated into the corpus of Earth Jurisprudence from practice in seven (7) South American countries where 135 records were found between 2005 and 2023. The case study was carried out using the methodological approach of the qualitative approach, the hermeneutic method, and the documentary review technique. The unit of analysis was based on the recognition of rights to nature, the data and information organized according to legal/political provisions, the state, the actor that initiated the action, and the ecological actor involved. Among the most outstanding findings, it is evident that a large number of records are concentrated in Ecuador and Colombia. The first correlates with the constitutionalization of the rights of nature and coincides with the second as they have been part of the stream known as new Latin American constitutionalism. In addition, a notable jurisprudential development recognizes nature as a subject of rights and declares it a victim of the armed conflict. Bolivia, which also joined this emerging denomination, has a different tendency than it had in its beginnings, not as the two countries mentioned above have done. Brazil stands out for its considerable increase in such legislative recognition. Argentina has a stronger emphasis on animal law. Peru has an incipient contribution to some regulatory implementation. Finally, Chile, the most laggard, tries it with a new constitution that recognizes these rights without having the approval at the ballot box. It is concluded the need to elevate the rights of nature and animals to constitutional status, claiming indigenous and ancestral cosmogonies regionally since it includes a legal stability that would facilitate the work of judicial and legislative actors and decision-makers for developing public policies, which would contribute to the practical development of the new Latin American constitutionalism and the Earth Jurisprudence.

Right to Privacy and Constitution: An In-Depth Analysis

This paper presents a detailed analysis of the relationship between the right to privacy and the Constitution, examining the theoretical foundations, contemporary challenges, and legal implications of this crucial union in the context of fundamental rights. Privacy, understood as the right to be left alone and to control personal information, has evolved as a cornerstone of democratic and progressive societies. We begin by exploring the roots of the right to privacy in legal and philosophical theories, highlighting how this concept has gained importance in safeguarding human dignity and individual freedom. It also discusses historical and social influences that have shaped the perception of privacy in the context of the formation of modern Constitutions. Subsequently, emerging challenges related to privacy in the digital age are examined. The increasing interconnectivity through information technologies and the proliferation of personal data have posed new challenges to privacy protection, necessitating a critical reevaluation of existing constitutional laws and guarantees. Tensions between the right to privacy and other societal needs, such as national security and crime prevention, are also explored in an attempt to identify a balance that can safeguard both interests. Furthermore, the paper addresses recent legislative and jurisprudential developments regarding the right to privacy, both at the national and international levels. The analysis focuses on crucial court decisions, privacy laws, and legislative debates that have shaped the current legal framework. Finally, potential future developments in the context of the right to privacy and the Constitution are explored, taking into account technological advances, ethical challenges, and emerging societal needs. The aim is to provide a comprehensive and in-depth understanding of how the right to privacy integrates and evolves within the constitutional framework, contributing to a critical understanding of an increasingly relevant topic in contemporary society. Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

Questioning the coherence of the freedom to conduct a business: Insights from the Court of Justice of the European Union

This article examines the jurisprudential development of Article 16 of the Charter of Fundamental Rights of the European Union in the Court of Justice of the European Union (Court), which safeguards the freedom to conduct a business. The paper argues that the Court has adopted an incoherent approach in interpreting this freedom, leading to legal uncertainty. Through an analysis of the Court's case law, the paper explores the Court's varying interpretations across three policy areas: the Common Agricultural Policy, the information society and labour/social law. The paper posits that the Court's interpretations lack coherence, with some rulings characterizing the freedom to conduct a business as a ‘weak’ freedom, allowing for significant market interventions, while in other decisions the Court adopts a more ‘forceful’ stance, in which it prioritizes businesses freedom over individual social and civil rights. The paper concludes by suggesting that the Court's incoherent application of Article 16 of the Charter has implications for the predictability and reliability of the freedom to conduct business within the EU's constitutional order. It highlights the need for a comprehensive normative framework to guide the Court's balancing act of Article 16 with other fundamental rights recognized in the Charter.

“Unmeasured” and never-ending working hours in UK higher education: time for workers, unions and employers to reinterpret the law?

ABSTRACT Higher Education staff in the United Kingdom (UK) work long hours to complete their duties. In a 2021 survey, staff reported a weekly average of 51 hours: a fact well understood to undermine health and educational quality. Yet, UK law sets a maximum working week of 48 hours, and failure to uphold this maximum is a criminal offence for employers. Seeking to understand this contradiction, the article reveals that staff are denied otherwise universal legal Health and Safety protection by the development and reinforcement of legal interpretation that assumes they have sufficient ‘autonomy’ to avoid overwork. As this is a position mutually constructed and accepted by both employers and unions, all efforts to reduce hours, including Industrial Action, have worked from this premise. However, critical analysis of university Terms and Conditions, against relevant jurisprudential developments, adds significant original value by questioning the validity of the status quo legal interpretation. Specifically, a landmark legal ruling against the UK by the European Court of Justice, and the resulting 2006 amendment to the UK Working Time Regulations, strongly suggests most University Terms and Conditions are legally noncompliant. As such, HE stakeholders should pressure powerbrokers involved in this omnipresent dispute to revisit the law: specifically with a view to re-establishing any fundamental rights of which they are currently illegitimately deprived. Where this was successful, empirically informed weekly workload modelling – rather than irrelevant, abstract annual calculations – would become a legally enforceable necessity for the benefit of staff and students alike.

Cybercrimes: An Emerging Category of Offenses within the Frame of the International Criminal Court Jurisdiction

In our interconnected society, crime persists, demanding joint efforts by national and international authorities to detect, prevent, and prosecute criminal activities. Jurisprudential evolution mandates lawmakers to possess a comprehensive legal vision, adapting laws to changing social contexts and emerging criminal methods, especially in technology, including computer technology and Artificial Intelligence (AI). This article comments on the escalating vulnerability of sovereign states and their economies to cyber-attacks. The radical evolution of computer systems has led to new modes of aggression, targeting not only traditional legal assets but also individuals familiar with advanced technology. The emergence of "cyberwarfare" prompts inquiries into potential categorizations within international legal frameworks. Recent global conflicts highlight the potential classification of cyber-attacks on critical infrastructure as war crimes or acts of aggression, urging the International Criminal Court (ICC) to consider incorporating cybercrimes into its core interests. While normative references may lack in existing conventions, the Martens Clause emphasizes treating attacks using technology as equivalent to conventional means. Article 51 of the United Nations Charter implies that cyber weapons could be deemed equivalent to conventional weapons under international law. The article stresses the importance of education and advanced training for legal personnel skilled in identifying cybercrime perpetrators, challenging the ICC to recruit or train individuals with the necessary legal and technical expertise for effective cybersecurity responses. The article briefly explores challenges in conceptualizing and categorizing cybercrimes within existing legal frameworks. The intersection of law and technology necessitates harmonious collaboration between legal and technical experts, acknowledging the intricate web of cyberspace and the implications of cyber threats on global stability and security. In conclusion, the article advocates a fundamental shift in the approach to justice, recognizing the ICC's imperative evolution in addressing cybercrimes. Integrating cybercrimes into the ICC's purview aligns with international law principles, emphasizing the equivalence of cyber weapons to conventional arms. Collaboration between legal and technical experts is essential in navigating the complexities of cybercrimes, ensuring accountability, and upholding justice in the digital age. The article concludes by highlighting the proactive role of the ICC in shaping the future of global justice amid emerging cyber threats.

Beyond cruelty: Analyzing sexual and gender-based violence as torture and inhuman treatment

This article delves into the critical intersection of sexual and gender-based violence (SGBV) and the international legal frameworks governing torture and inhuman treatment. SGBV represents one of the most pervasive and devastating violations of human rights worldwide, with women and girls disproportionately affected. It aims to analyze how categorizing SGBV as acts of torture and inhuman treatment under international law can provide a more robust legal framework for addressing these violations, acknowledging the prevalent majority of victims being women and girls. By elucidating the multifaceted nature of SGBV and its impact, and examining legal precedents and jurisprudential developments, the article contributes to the evolving conceptualization of SGBV within the context of torture and inhuman treatment, with a focus on women?s suffering. Moreover, it highlights the practical and symbolic benefits of this categorization, including enhanced legal accountability and increased protection for survivors. The article concludes by emphasizing the urgent need for a unified approach by international stakeholders and policymakers to address SGBV as a distinct and pervasive form of torture and inhuman treatment, contributing to the ongoing discourse on sexual and gender-based violence and offering insights for advancing the protection of vulnerable individuals and marginalized communities on a global scale.

The Saga May Continue: On the Intricate Dialogue Between the Constitutional Court of Romania and the Court of Justice of the European Union

This study tracks the evolution of the jurisprudence of the Constitutional Court of Romania (CC) vis-à-vis the complex relationship between national law and European Union (EU) law. In this study, the decisions issued by the CC were identified, examined, and grouped chronologically, and based on how the Court related to EU law, its jurisprudential evolution was periodised. This relationship is reflected in the jurisprudence of the CC and of the Court of Justice of the European Union (CJEU). If this relationship was initially one of collaboration, subsequent jurisprudential tensions arose between the two courts, especially in terms of reconciling the principle of the supremacy of the Constitution with that of the priority of application of EU law. The doctrine of counter-limits, embraced by the CC, according to the German model, has a special role to play in this equation. This study brings to fore all these aspects in an exhaustive way and tries to provide a truthful picture of how the national legal order interacts with that of the EU through the lens of the jurisprudence of both, the CC and CJEU.

Reexamination of the Concept of Justice in the Inheritance System: A Study on Women's Inheritance in the Traditional Society of Bali in Lombok, West Nusa Tenggara, Indonesia.

The Hindu inheritance law allows for the possibility of inheritance for female children, though with a reduced share. Interpretations of religious norms are often disregarded in customary legal systems with the argument that Hinduism does not endorse double obligations. The customary inheritance law used by the Hindu community in Lombok, Indonesia, is based on Hindu inheritance laws interpreted according to local customs or village traditions. Different interpretations in each region regarding women's inheritance rights worsen the fulfillment of women's inheritance rights. Therefore, in line with the evolution of jurisprudence towards the fulfillment of women's inheritance rights, such as the shift from patrilineal to parental principles in Islamic inheritance, this study proposes the reexamination of the justice principle in Hindu inheritance law practiced by the Balinese indigenous people in Lombok. This reexamination should consider their unique characteristics and distinguish them from the Hindu community in Bali. As a basis for protecting women's rights in Hindu inheritance law, this becomes crucial for inclusion in a national legal framework.

The European Court of Human Rights and the Major Arguments in Environmental Law

The recognition of the right to a healthy environment is the result of a jurisprudential evolution which, without presupposing the explicit recognition of new rights, called for the extension of the scope of application of already existing rights (protection by ricochet, according to the established formula). In this context, the ECHR played and plays an important role in concretizing the right to a healthy environment, a right that indirectly imposes related implications to other rights that guarantee the essential right, namely the right to life of the natural person. Through its activity, the approach of the ECHR is an original one in that it resorts to hypothetical individual rights to sanction infringements of a collective good, such as the environment. This work is a summary that includes the arguments given by the ECHR for the right to a healthy environment, a right that can only be accessed by exploiting other rights such as: the right to life, the right to safety, etc. Although the right to a healthy environment is not a concept of the European Convention of Human Rights but a concept formed by the Council of Europe, however, the impacts on the environment cannot be directly caused by the violation of the right to a healthy environment, which is not guaranteed by the ECHR, can be, instead, the cause of the violation of other rights protected by the Convention.

Anticipatory thinking vs Fiqh Tawaqqu': Integrating the Western and Islamic perspectives

With an emphasis on the notion of Fiqh Tawaqqu', this article examines anticipatory thinking from both Islamic and Western vantage points. Anticipatory thinking is an essential cognitive skill for both individuals and teams, as it entails the capacity to proactively foresee forthcoming obstacles and possibilities. This paper examines the components of anticipatory thinking within the Western culture, encompassing forecasting, scenario planning, risk evaluation, opportunity identification, and adaptability. It emphasises the advantages of anticipatory thinking, including enhanced decision-making capabilities, readiness, and flexibility in response to changes. On the contrary, the article explores the Islamic viewpoint through an elucidation of Fiqh Tawaqqu' and an analysis of its importance within the realm of Islamic law (fiqh). Fiqh Tawaqqu' pertains to the anticipation of action results through the application of experience and evidence, with an emphasis on maslahah (benefits) for the ummah (community) and the prevention of damage (mafasid). The paper examines the acceptance and rejection of Fiqh Tawaqqu' among Muslim scholars, addressing the objections raised by some early Islamic figures. Furthermore, the paper offers examples of Fiqh Tawaqqu' that were initially met with skepticism but have proven to be relevant in contemporary contexts. It emphasizes the role of Fiqh Tawaqqu' in the development of jurisprudence and fatwa, enabling scholars to provide solutions to emerging societal issues. Finally, the paper explores the integration of anticipatory thinking and Fiqh Tawaqqu', highlighting the commonalities and potential synergies between these two approaches. It underscores the importance of forward-thinking and strategic planning in both Western and Islamic contexts to address complex challenges and shape a better future. This study presents a comprehensive overview of anticipatory thinking and Fiqh Tawaqqu', developing a deeper awareness of their significance and ramifications in today's environment.

Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies

Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.

Theory of Endorsements: Legislative and Jurisprudential Development in Romania and in the European Union

Theory of Endorsements: Legislative and Jurisprudential Development in Romania and in the European Union