Judicial Aspects Research Articles

Foreign Relations and the Judiciary

It is not generally appreciated that Francis Mann was not an international lawyer at all by training. His thesis at Berlin University was in company law. It was only after he had been in England for some time that he began to write about private international law,1and his interest in public international law was developed as a result of his friendship with Sir Hersch Lauterpacht. It was not until 1943 that he published anything about public international law, and in that year he published a substantial article in two parts on the relationship between national law and international law, in which he built on the previous work on Judicial Aspects of Foreign Relations by Louis Jaffe2and on acts of state by Sir William Holdsworth.3Subsequently he came to make this subject his own, at least in England,4where the subject has never attracted the attention which it has attracted in the United States.5

Publicity and Media under Communism and After: The Destruction of Privacy

AT first glance, it may seem oddly inappropriate that someone from today’s Ukraine would discuss its media in terms of the postcommunist destruction of privacy rather than by examining violations of freedom of speech. The “destruction of privacy” naturally implies the encroachment of what was once dubbed the “public sphere” on the formerly “private” territories, and of all the postcommunist European states (with the understandable exception of totalitarian Belarus), Ukraine has become notoriously known for just the opposite: the state’s brutal attempts to silence the sphere of public discussion wherever it interferes with the private interests of those in power. One may say that such attempts illustrate the durability of the “good old Soviet” ways of keeping things secret. Yet, I will try to show that, paradoxically enough, it is precisely the profound current political crisis in Ukraine, unleashed by the discovery in late 2000 of the headless corpse of Internet journalist Heorhij Gongadze, that can help us reveal the transformations in the very structure of publicity and privacy that have occurred since the collapse of communism. I will approach the problem both as an intellectual, professionally destined to hanker at the essence of things seen through accidents , and as one of contemporary Ukraine’s public figures whose past five years of life have, to a considerable extent, been spent in SOCIAL RESEARCH, Vol. 69, No. 1 (Spring 2002) Publicity and Media under Communism and After: The Destruction of Privacy BY OKSANA ZABUZHKO© 2002 by Oksana Zabuzhko. All rights reserved. the media spotlight and who, therefore, has had a chance to learn from her own personal experience that which may still call for a thorough scholarly study. My most recent experience is worth some scrutiny. On the same day I received the invitation to deliver this paper, I attended a press conference held by a public initiative group announcing “The Loser of the Year” awards (the alternative to the “Man of the Year” awards, the pompous and sumptuous “royal court” ceremony celebrating mainly pro-presidentially oriented, high-ranking officials, businessmen, and media people). The group had chosen President Leonid Kuchma as “Linguist of the Year” (“for the contribution he has made to Ukrainian public discourse,” the ironic formula referring to the tapes on which Kuchma was allegedly heard discussing the aforementioned journalist and using vulgar language), and I was asked to present the award. The room was overcrowded, the audience amused and agitated, and many (though not all) private television stations and newspapers reported the event. What stunned me, however, was something else. None of the journalists at the press conference raised the question that I was specifically prepared to answer: the authenticity of the notorious tapes tacitly taken as the main source of the president’s “innovative” discourse. There can be only one reason why this did not happen: whatever the judicial aspects of “tapegate ” may be, the language of the person on the tapes perfectly fits the president’s personality as it had been gradually revealed to the public on radio and television. Foul words notwithstanding, it was first and foremost the speaker’s personality, or, more precisely , the characteristic individual mixture of the vulgar and boorish old Soviet apparatchik’s ways with the semicriminal manners of the post-Soviet nouveau riche, that sounded so instantly recognizable that there could hardly have been any doubt concerning the speaker’s identity. Here, I believe, lies the mark that separates us from our communist past. If we rewind the tape of history some 15 years back (to the days before perestroika), we must admit that, whatever the 36 SOCIAL RESEARCH attitudes of the public toward the ruling elite might have been, it was altogether impossible to imagine them conversing in private. The true revolution launched by Gorbachev (a revolution still underestimated, and of which he himself certainly was not aware) consisted of the fact that he was the first communist leader in decades who had chosen to reveal himself to the public as a private person: a Soviet leader with a wife in flesh and blood who gave interviews to the press (however censored!) and met people and argued in public with his “uncensored” opponents; performing , on the...

Judicializing Politics, Politicizing Law

I INTRODUCTION Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. This shift, which has been called judicialization, (1) has become more or less global in its reach, as evidenced by the fact that it is as marked in Europe, and especially recently in Eastern Europe, as it is in the United States. The spectacles of Italian judges undermining Italy's postwar system of musical cabinets, or of newly energized French judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders. Additionally, our own United States Supreme Court's intervention into electoral politics in Bush v. Gore (2) was yet another manifestation of this trend. One can distinguish at least three ways in which courts have taken on new and important roles relative to legislatures. First, courts have been increasingly able and willing to limit and regulate the exercise of parliamentary authority by imposing substantive limits on the power of legislative institutions. Second, courts have increasingly become places where substantive policy is made. Third, judges have been increasingly willing to regulate the conduct of political activity itself--whether practiced in or around legislatures, agencies, or the electorate--by constructing and enforcing standards of acceptable behavior for interest groups, political parties, and both elected and appointed officials. But judicialization is not simply limited to the increasingly important, pervasive, and direct roles that courts play in making policy. The fact that courts frequently intervene in policy-making processes also means that other political actors, as well as groups seeking political action, have reason to take the possibility of judicial reaction into account. Proposals need to be framed in a way to ensure that legislation will neither be struck down nor interpreted in Undersirable ways. In order to achieve such a result, part of the policy debate over new legislation must aim at anticipating the response of legal institutions. So, we see a global application of one aspect of the phenomenon that de Tocqueville noted about American politics years ago: the transformation of political questions into legal ones. (3) This means that legal/constitutional considerations and rhetoric assume new and sometimes decisive importance in ordinary legislative policy-making. One aspect of judicialization can be observed in the widespread adoption of institutions and practices of constitutional adjudication, even in places with legal institutions and traditions that had long been inhospitable to this process. True, the modes of constitutional adjudication adopted in Europe and elsewhere do not precisely follow the U.S. model. Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been--even in its most activist periods. (4) Moreover, the existence of constitutional courts has, in effect, pressed ordinary judges to take account of constitutional issues in their everyday judicial activities. For example, European judges regularly interpret legislative statutes and administrative ordinances in view of the constitution and decide which issues need to be referred to the constitutional court. (5) Moreover, the rise of constitutional adjudication has transformed the landscape of parliamentary politics by forcing legislators to take constitutional considerations into account when crafting legislative schemes. …

Globalização: Aspectos Jurídicos e Sociais

Globalization: social and judicial aspects: Much has been said about globalization in and out of academic circles as a reality that has brought big changes in the public and especially the economic sector. However, how is this phenomenon seen by jurists? What are the social implications of globalization? Could we talk about social globalization with the same intensity that we talk of economic globalization? Through these issues, this article attempts to expose the main characteristics and the judicial and social consequences of the phenomenon of globalization.

Les fondements de la précaution

The precautionary principle appeared in the health vocabulary, especially in blood transfusion, at the beginning of the 1990s. It is applied to potential risks in case of scientific doubt and corresponds to an hypothesis of risk that must be completely distinguished from the case of an exceptional residual risk. This principle lies on two innovations: the breach of the link between scientific knowledge and decision, and the creation of a context for a new normative value. Because of their consequences, these innovations should generate a debate between professionals about the caution principle's foundations, its conditions of application, and its judicial drawbacks. This article, mainly dealing with the foundations of caution, will also present the social construction of the precaution, its judicial aspects, as well as the change in the relationship to risks induced by it.

A Paradox of Power: Voices of Warning and Reason in the Geosciences

As a culture, we are faced with a series of increasingly complex environmental problems. As geoscientists, we are often asked to assume the role of technical experts to provide guidance or solutions to these difficult dilemmas. Unfortunately, the political, social, economic, and judicial aspects of environmental management often require geoscientists to advocate choices or provide definitive answers that are in conflict with our training as never‐ending hypothesis testers and unbiased observers of nature.A Paradox of Power: Voices of Warning and Reason in the Geosciences addresses this topic by providing a collection of works that highlights various discrepancies between standard scientific procedures and the public decision‐making process. The book presents a range of views and examples that provides geoscientists with a background on the issues surrounding the use of their expertise and analyses in typical law and policy decisions.

Planned orphanhood

Medical technology, which today makes it possible to bear a child after death, enables planned orphanhood. The first part of this paper will discuss the medical innovations in human conception, the psycho-social aspects of the wish for children from the genes of someone who is no longer alive, and the ensuing orphanhood and its implications. The second part will discuss the ethical issues relating to planned orphanhood: Who are involved in the matter of planned orphanhood? Is the decision to produce a planned orphan a private or public matter? Whose responsibility is the birth and bringing up of the planned orphan? To whom does society have more responsibility – the children who already exist or future children? And can planned orphanhood be regarded as a justification for wrongful conception? The last part of the paper will examine the judicial aspects of planned orphanhood in Israel and elsewhere and discuss the application of the principles of human dignity, human welfare, and justice. The paper argues for discouraging planned orphanhood so as to avoid violating the principles of human dignity and liberty, human welfare, and human justice, from the perspectives of both those who are involved in the process in general and the orphan who is the target of the medical intervention in particular. Its aim is to encourage deep and comprehensive public discussion of this issue in all its aspects.

Guardianship of the Elderly: Psychiatric and Judicial Aspects George H. Zimny and George T. Grossberg. New York: Springer Publishing Company, 1998, 155 pp., $US 31.95 paperback.

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Guardianship of the Elderly

GUARDIANSHIP OF THE ELDERLY George H. Zimny, PhD and George T. Grossberg, MD New York: Springer Publishing Company, 1998, 144pp., $31.95 (softcover). We enter this world in a state of total dependency; many people in their advancing years experience a return of dependence, which may bear a strong similitude to that of our infancy. As children, for the fortunate ones, we have our parents to provide for our manifold needs. As progressive age encroaches, after the bloom of youth has passed, one's need of help from others may require that someone act in a role akin to that of a parent. Often, that means the creation of a guardianship. The appointment of an adult to be a guardian of another is a legal process which in every jurisdiction in this country involves a court. Physicians are invariably involved, because it is a decline in one's cognitive or physical health, or both, which necessitates the appointment of a guardian. In many cases, an assessment by a psychiatrist is essential. It is to those two elements of guardianship, as is indicated in the book's subtitle, Psychiatric and Judicial Aspects, that of the is directed. It appears as part of the Springer Series on Ethics, Law, and Aging. The book's two editors, who also wrote two of its chapters, come from the mental health field, one as a research psychologist and one as a geriatric psychiatrist. The 12 contributing authors include psychiatrists, psychologists, judges, lawyers, a law professor, and a nurse who is Director of Probate Court Services in San Francisco. One intent of of the Elderly, as indicated in the foreward, is to, . . collect in one place materials that will be useful for practitioners and students in disciplines that involve issues of legal incompetence of the elderly. It is also directed toward those who might help develop or influence public policies affecting elderly persons who are no longer capable of managing some or all of the most significant aspects of their lives. The book is meant to provide a basic overview of what guardianship is as it involves the elderly and to explain the process by which it occurs. For persons from a wide array of disciplines, extending beyond medicine and law to such areas as finance, and working in diverse fields, such as health care providers, advocates for the elderly, policy makers, judges, enforcement personnel, and legislators, this book is an excellent introduction to the topic and a well-organized basic reference. The book is divided into four parts of varying lengths. The first is an introduction comprising two chapters, one dealing with general aspects of Guardianship of the Elderly and the second, the Legal Basis of Guardianship. The other sections consider psychiatric and judicial aspects of guardianship of the elderly, and the final section contains one chapter on research in that field. The section devoted to the judicial component is the most lengthy. Many persons who read this book will find at least one section covering a topic with which they feel very familiar, and there might be a tendency by some to complain that particular topics are dealt with in a broad, superficial manner. To do so, however, would be to misrepresent this book's purpose. It is not intended to be an all-encompassing source of information or to provide a detailed explication of complex subjects such as assessment of competency or procedural requirements in the judicial system. Rather, of the will serve as an introduction to those seeking an overview who have little or no experience in that area, while for those who have dealt with the matter in more detail, it will fill in many gaps in their knowledge and understanding. To those ends, the book fulfills its intentions superbly. The first chapter places the issue of guardianship within the context of the rapidly growing numbers of the elderly in our society and the harms they may suffer through selfneglect or abuse by others. …

If Your Worship pleases: an Australian perspective on the role of the magistrate in child protection

This paper examines the hitherto unexplored role of magistrates in child protection. It reports on a series of interviews conducted by one of the authors with magistrates in the Family Division of the Melbourne Children's Court, Victoria (Australia) in 1993–1994. These interviews form part of a current, and larger, study of magistrates' decision-making in child protection. This paper critically examines the role of magistrates in planning for children in need of care and protection. Some of the questions that the paper poses include: do magistrates focus solely on judicial aspects or do they have a role in overall case planning for children? Do they have specific aims or objectives which influence how they deal with children who come before them? Do magistrates mostly agree with the recommendations which social workers put to them? Are magistrates subject to constraints which may not be understood by other professionals? The findings of the paper will assist in clearly defining the role of the magistrate in child protection, which has distinct advantages for all professionals who work in this complex area. The most appropriate outcomes for children can only be achieved when magistrates and other professionals work in partnership. © 1998 John Wiley & Sons, Ltd.

The Court and the Kola Nut: Wooing and Witnessing in Northern Ghana

For the Mamprusi people of northern Ghana, the gift of kola nuts indicates respect and gratitude. Those who chew kola together should love and trust one another. The gift of kola is also used to initiate an on-going relationship in which the recipient may be expected to cede to a future request from the donor. Kola is thus associated with courtship. Mamprusi make explicit some of the ambiguities surrounding the English word 'court'. Mamprusi chiefly courts are the prototypical arena for kola distribution. Subjects greet a chief and the chief greets his court with kola. Marriages are established by a distribution of kola which passes through the king or chief On these and other occasions, the public receipt and consumption of kola nuts mark individuals as having 'seen' the event of which the kola distribution is part. Kola is used in this way, to create witnesses, and the judicial aspect of Mamprusi courts is thereby linked to the distribution and ingestion of kola.

Nationwide assessment of the suitability of the Norwegian coastal zone and rivers for aquaculture (LENKA)

Abstract A coastal zone management program called LENKA—Nationwide Assessment of the Suitability of the Norwegian Coastal Zone and Rivers for Aquaculture— was started in 1987 and ended in the summer of 1990. The program aims to develop an efficient and standardized tool for coastal zone planning. In the program consideration is taken of all important existing utilization and judicial aspects connected to the Norwegian coastal waters. As part of the program a methodology for assessing the suitability of marine areas for aquaculture has been developed. The marine areas ‘ holding capacity is determined by a developed model. The main steps in the development of the capacity assessment are as follows: (1) An assessment of the maximum acceptable organic loading of the water body of the marine areas, which is arrived at by subtracting the existing inputs of organic loading and nutrients from the natural capacity of the area to tolerate organic loading and nutrients. (2) An assessment of the area available for aq...

Discussion on ethical and judicial aspects of embryo research*

Discussion on ethical and judicial aspects of embryo research*

Post-mortem examination and certification of death under G.D.R. law

Post-mortem examination and certification of death in the G.D.R. are regulated by the Order on the Medical Post-mortem Examination (O.M.P.E.) issued in 1949 and confirmed in 1978. The tasks of the doctor certifying death are described as well as the co-operation between police, district attorney, and pathologist, and legal doctor, respectively, in all cases of death ‘under suspicious circumstances’. Medical as well as judicial aspects of post-mortem examination are discussed.

Customary Law and Chieftainship: Judicial Aspects of 2 Samuel 14.4-21

Customary Law and Chieftainship: Judicial Aspects of 2 Samuel 14.4-21

The Relationship of the Artist to Power: E.T.A. Hoffman's Das Fräulein von Scuderi

Criticism of Hoffmann's Das Fraulein von Scuderi 1 has undergone a major shift of emphasis in the last few years. Whereas earlier critics were primarily interested in the story as a treatment of the artist figure or as a psychopathological study (Cardillac), 3 or in those elements which seem to make it a forerunner of modern detective fiction, 4 the most recent interpretations, those of Klaus D. Post5 and Hermann F. Weiss, 6 have concentrated on the social, political, and judicial aspects of the work and have demonstrated that they are not merely `a thematic background' to Cardillac's crimes, as J.M. Ellis had earlier

Les relations économiques extérieures de la Hongrie

Hungarian Foreign Trade Relations. Foreign trade is indispensable for a country like Hungary which is economically developed, but lacking in raw materials and sources of energy. Economic growth requires and increase in importations and therefore, in exportations. The author presents a table of the structure of Hungarian foreign trade, listing the products exchanged and their zone or region. 62% of the exchanges are carried on within the socialist countries, 31% with the capitalist countries and 7% with the developing countries. The different types of exchanges are described: financial transactions on international markets, long-term commercial agreements, mixed firms, exchanges of licences and patent rights, industrial cooperation, etc. In conclusion certain judicial aspects of foreign trade are discussed, such as the guarantees offered to Western trade partners and the monetary system in operation in Hungary.

Corporate Enterprises in the Emerging Ocean Regime

A supranational government of the deep oceans is an urgent need of our times—exploitation of its resources, commercial pollution, and use for military ends must be controlled. This article describes proposals for such a governing body (particularly the Borgese Model and variations of it) and their legislative, executive and judicial aspects.

Manual on Urban Planning Chapter IX: Plan Implementation

This chapter of the forthcoming Urban Planning Manual is concerned primarily with governmental regulation as a means of improving the urban environment. Considered in some detail are the legal, judicial, and administrative aspects of the various types of regulation, including subdivision control, zoning, and building codes. A primary objective is to promote better mutual understanding and cooperation between the builder and developer, on the one hand, and the legislator and public administrator on the other. Two related areas are also considered, urban renewal and redevelopment, and citizen participation and support.

Taxation with Misrepresentation

THE TAXATION aspects of interstate trade barriers present a problem of as much importance to marketing men as to students of public finance. Its study will reveal a curious mixture of unsound theory, bad ethics, ingenious subterfuge anid practical politics. In the first place, it ought to be selfevident that an honest tax measure is one which clearly states its objective and that a so-called revenue law which penalizes interstate commerce will, instead of increasing the state's income, curtail it through the decline or disappearance of the tax base. Hence, while we may justifiably complain about the general tax burden, we should not add the charge of trade barrier effects to the indictment. The principal matter to be discussed here is the increasing use of laws purporting to be revenue acts which have, in fact, a trade barrier objective. It is generally recognized, of course, that states have tremendously increased demands for public expenditure and that heavier taxes and new sources of funds are essential. It is equally apparent that a state has the right and duty to protect its income so long as discrimination is avoided. The temptation is ever present to blacklist many defensible restrictions against the evasion of domestic taxation by foreign corporations or individuals by calling them barriers to interstate commerce. So long as tax legislation tends only to equalize competitive opportunity, there should be no objection; but in our recently well-aroused indignation against the trend toward economic provincialism, we become more enthusiastic than selective in our condemnation. Not only do we apply the trade barrier stigma too freely in some directions, but we have probably failed to appreciate the restrictive effects that are found in others.1 We should conserve our energies to attack the invocation of the taxing power to hide purposes which could not be attained if legislation were subjected to the labeling and advertising restrictions borne by business enterprise. A tax which openly levies upon the possession of wealth or the receipt of income, which requires payment for the enjoyment of special benefits or privileges, or which is punitive to socially undesirable activities may involve problems of theoretical importance and may constitute a burdensome cost to the business community. However, it does not warrant as much critical attention as the action of legislators who, succumbing to lobbying pressure, pervert the state's tax authority for the benefit of special group interests. There is no question but that the states have the power to tax intrastate commerce, but the taxation of interstate commerce has constitutional and judicial aspects. There is no provision in the Federal Constitution specifically prohibiting the states from levying against trade between the states, but the courts have traditionally limited such a practice. Until very recently, at least, the accepted doctrine has been that the national government has control over matters of common interest to the entire country or which require uniformity of control, while affairs of purely local concern are the province of the states.