Juridical Framework Research Articles

DESCENTRALIZAÇÃO E PARTICIPAÇÃO SOCIAL: CONSTATAÇÕES E ANÁLISES COMPARATIVAS EM EXPERIÊNCIAS BRASILEIRAS DE DESCENTRALIZAÇÃO POLÍTICO-ADMINISTRATIVA

The descentralization of public management in Brazil oportunized by the different experiencies on political-administrative descentralization, is a nowadays issue with a deep relevance for the advancement of democracy, taking in to account the indicators of social participation under the 1988 Brazilian Federal Constitution. The experiences of descentralization in the fields of political and administrative are compared between the Rio Grande do Sul and Santa Catarina States. Also the possibility of social participation in the public management is assessed, under the legal framework in force. Considering the mentioned analysis it is possible to say that although some former error could occur, in both experiences, the Juridical Framework of the Development Regional Councils (RS) allows a major social participation. On the other hand the Regional Development Council (SC) despite being provided for the equally participation between the public sector and the civil society in the formation of their boards, the nomination and appointment of the members is a responsability of the State and the Cityhalls, with what is commited the representative participation of the society in the process.

Judging the Judge: Judicial Competence in 19th Century Iran

Abstract: This paper investigates the impact of the dominant Imāmī Šīʻī Uṣūlī doctrinal model in nineteenth century Iran of the jurist (muǧtahid) as arbiter (qāḍī al‑taḥkīm) on judicial practice. By drawing on a “litigant archive” from this period, I discuss one problem that emerged from the dominant doctrinal model. It became possible for litigants to challenge the validity of a ḥukm by claiming they did not recognize the scholar who issued the ḥukm to be a muǧtahid and hence judicially competent. This ultimately forced Uṣūlī writers to come up with a juridical framework where one recognized muǧtahid would have to confirm the emergence of another one in cases where a scholar’s juristic qualifications (iǧtihād) were challenged. In practice, as I demonstrate, even if a scholar’s judicial competence as a muǧtahid was confirmed by another recognized muǧtahid, it was still no guarantee that the scholar’s ḥukm would be enforced.

Free Movement for Whom, Where, When? Roma EU Citizens in France and Spain

EU citizenship is often regarded as the culmination of a process whereby the transnational mobility of “workers” has led to the granting of rights to “humans” qua citizens, with both legal scholars and ethnographers emphasizing its normative significance in this respect. Challenging such a narrative, this study sets out to highlight the contingent nature of a postnational EU citizenship, with reference to the lived experiences of migrant Roma. As a first step, we highlight the conditionality within EU law associated with the granting of rights to those enacting EU citizenship by residing within EU territory beyond their own member state. In a second step, we highlight the variable ways in which such conditionality is deployed in different national contexts, with reference to the frameworks in France and Spain. While the former has deployed these conditions in a manner that has excluded EU citizens, particularly migrant Roma, the latter—at least for a time—was more permissive in its granting of rights to EU citizens than EU law required. However, in a third step, we suggest that the lived experiences of migrant Roma in these two national contexts have not been as different as the legal differences suggest. Drawing on ethnographic fieldwork on Romanian Roma in two municipalities near Barcelona, we demonstrate the ways in which a local politics of exclusion is legally possible, even within an ostensibly permissive juridical framework of citizenship. We highlight how the ambiguity of a multilevel citizenship not only opens up possibilities for multifaceted forms of exclusion, but also for various forms of resistance, both within and beyond a juridical citizenship framework.

Costa Rica, mujer y ciudadanía

En este trabajo se incluye, en primer lugar, una breve exposición sobre las luchas iniciales de las mujeres costarricenses por alcanzar su derecho a la ciudadanía. A partir de esas luchas, las mujeres se liberaron de su condición de dependencia representativa, para asumir la ciudadanía autorrepresentativa. En segundo lugar, se hace referencia a los instrumentos internacionales sobre derechos humanos femeninos, que sirvieron de base a la legislación nacional en el tema de la mujer; en tercer lugar, se señala el marco jurídico civil y electoral, que ha posicionado a la mujer como un sujeto activo dentro de la praxis de los derechos humanos, en las últimas seis décadas, hecho que ha permitido su inserción y su participación en la construcción del proyecto país. Por último, se aborda el desempeño económico y político de la mujer en la sociedad costarricense actual.

Re-Legislating the Soil: Enclosure and Exception at the Amazon Frontiers

In 2009 a series of mobilizations articulated by indigenous groups took control over practically the entire Peruvian Amazon. Geographically distributed but politically articulated, these manifestations were fighting against the institution of a new Forest Law that would transform not only the juridical framework that governs Amazonian lands but potentially alter the very ecological nature of the forest itself. This text traces some of the lines of this conflict in order to discuss the relations between sovereignty and nature, government and environment, politics and ecology.

Sustainable Illegality: Gagauz Women in Istanbul

This study deals with survival strategies of illegal migrants in Turkey. It aims to provide an explanation for the efforts to keep illegality sustainable for one specific ethnic/national group—that is, the Gagauz of Moldova, who are of Turkish ethnic origin. In order to explicate the advantages of Turkish ethnic origin, I will focus on their preferential treatment at state-law level and in terms of the implementation of the law by police officers. In a remarkable way, the juridical framework has introduced legal ways of dealing with the illegality of ethnically Turkish migrants. From the viewpoint of migration, the presence of strategic tools of illegality forces us to ask not so much law-related questions, but to turn to a sociological inquiry of how and why they overstay their visas. Therefore, this study concludes that it is the social processes behind their illegality, rather than its form, that is more important for our understanding of the migrants’ survival strategies in destination countries.

MERGERS’ IMPLICATIONS FOR EMPLOYEES UNDER ROMANIAN LAW

AbstractMergers of enterprises produce profound effects over the rights of associates,creditors, and employees. Although the interests of each of the categories of persons affectedare protected by national and European norms, employees enjoy a particular attention. InEuropean law, Directive 2001/23/EC regulates the safeguarding of employees’ right in thecase of transfer of undertakings, businesses, and parts of undertakings or businesses.Communitarian dispositions have been transposed in Romanian law by articles 173-174 ofLaw 53/2003 - The Labour Code and Law 67/2006 regarding the protection of employees’rights in the event of transfer of undertakings, businesses, or parts of them, which transposethe Communitarian norms in the subject matter.The labour contract is an intuitu personae contract, the relationship betweenemployee and employer being one of subordination. Thus, there are at least two rationalesthat justify the lawmaker’s preoccupation for the implications of restructuring operationsover employees. Employee protection in case of transfer by merger entails, in substance, thesafeguarding of their rights and obligations within the framework of the ceded entity, as theyhad been set by the labour contract of the cedent entity. The current study critically analysesthe national law concerning the transfer of labour contracts in the context of transfer bymerger. The paper also contains a number of de lege ferenda proposals, which can contributeto the improving of the existing juridical framework.

Politics of Memory, Decentralisation and Recentralisation in Mozambique

This article explores the contradictory processes that arise from projects of democratic decentralisation in the contexts of those post-civil war, emergent pluralistic democracies and ruling elites that typically strive to officially maintain essentialist forms of national unity, identity and commemorations. These contradictions significantly shape projects of democratisation and decentralisation in post-conflict countries, even though they have not been thoroughly accounted for in the expert literature. In Mozambique, these contradictions were analysed through the unrelenting attempts by the main Mozambican opposition party, Renamo, to inscribe officially in the country's landscape their own version of the post-independence civil war (1976–1992). Taking advantage of the Law 2/97, known as the Juridical Framework for the Implantation of Local Autarchies, Renamo built a square with a sculpture to honour André Matsangaíssa, Renamo's first commander killed in combat during the war. The inauguration of Matsangaíssa Square was the focal point of serious elite factional contestation and debates in the media and in the streets about the appropriate memories to give a new sense to national unity, identity and decentralisation. The Frelimo government both appealed to the Administrative Court and recentralised some aspects of the decentralisation law. Although the elites' representations of the meaning of decentralisation and recentralisation shape the public's views, the positions of the ordinary people signal that the dynamics of decentralisation and national identity are far more complex than the elite partisan discourses which are also at times incoherent. The overall analyses demonstrate how conflicts over memories of violence paradoxically hamper and constitute political pluralism, democratisation and decentralisation in post-civil war Mozambique.

Hermeneutical Model for Identification of Juridical Variables in the ICT Comparative Research

This article discusses the basis to construct a model for identification of juridical variables, as a set of institutional variables based upon a given juridical framework, to be used in ICT comparative analyses from the perspective of the information revolution category and dependence of economic development upon ICT: the Telecommunications Law Indicators for Comparative Studies (TLICS) model. The research question is: what is the correlation between traditional juridical theories on interpretation and the institutional variables used in comparative analyses of ICT regulatory models? The article is organized in three main parts. A review of the literature is performed in the first part, in which ICT comparative analyses are scrutinized to show how juridical variables are incorporated by them. The second part delves into the methodology, theory, and operational tool for the proposed model. The third part identifies dimensions and variables apt to depict the juridical framework of ICT comparative analyses. Betti’s prescriptive hermeneutics and Hesse’s hermeneutics are adopted as methodologies of approach, based upon the institutional theory of law (Santi Romano) and Schmitt’s concept of institutional guarantees (institutionelle Garantien). As a main outcome, this article shows that juridical methodology, theory, and operative tools are important assets to assure the commensurability of institutional variables usually adopted by comparative research studies dealing with the relationship between development and ICT.

Cultural Property Protection in the Context of Military Operations: The Case of Uruk, Iraq

This paper deals with the use of military or militarized experts for cultural property protection (CPP) during times of conflict. CPP activities generally take place within a juridical framework that gives obligations for all parties involved, primarily the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and attention is paid to various implications and challenges that occur when implementing military CPP obligations within this framework. To illustrate matters, the paper details a specific case study from the author’s own field experience in the safeguarding of the archaeological site of Uruk in Iraq. Aspects, including economic, legal, financial, and educational implications, are presented and these are especially relevant since they apply (to an extent) to other situations, such as the recent cultural disasters in Egypt, Libya, and Syria. The Uruk case study is used to suggest a number of key elements that are vital for the implementation of an effective CPP strategy in the context of military operations. Overall, the importance of international cooperation, training, and education, along with the assistance of civil reach-back capabilities, is emphasized. The paper argues that an effective way to protect Cultural Property during armed conflicts is through military channels and with military logistics and tools. To fulfil CPP in agreement with International Humanitarian Law (IHL) joint preparations in peacetime are necessary. The handover of military initiated CPP projects to civil authorities has to take place as soon as the situation permits. The paper concludes with a set of recommendations.

<b> A incorporação das normativas mercosulinas e as constituições dos estados-partes: o desafio das superações da normatividade estatal </b> 10.5102/uri.v9i1.1347

This article aims at analyzing the process of incorporating Mercosur’s legal framework deriving from the bloc’s decision-making institutions with a view to assessing the progress of the integration process in the juridical sphere. Accordingly, the Constitutions of each member-State will be separately considered in order to evaluate the importance attributed to Mercosur’s Law in the countries’ internal juridical framework.

Application of mathematical method in public works tendering in Greece

In Greece, the legal framework for public works has application in each one of them, without exceptions. Historically, the Greek collective capitalist has utilized this framework for the purpose of reinforcing the degree of concentration (oligopolization) of the Public Works market. In the course of the year 1998 the legislator sought through implementation of Law 2576 to effect a forcible restructuring of the market and redistribution of the sectoral product to the benefit of the construction companies dominating the Public Works sector. Its aim was to either liquidate weaker contracting capitals or convert them into sub-contractors for construction oligopolies. It nevertheless transpires that the opposite results were produced to what was expected, so that there was a fall in the amount of Product appropriated by the hegemonic construction companies. The legislator accordingly introduced Law 2940/2001 within a juridical framework that came into effect at the same time as Law 2576/1998, the objective being to rectify the deficiencies of the older legislation.

The Palestinian States of Exception and Agamben

This paper questions the applicability of Giorgio Agamben's understanding and articulation of the ‘State of Exception’ concept in the Occupied Palestinian territories. Through a detailed analysis of the Palestinian spatial conditions, it presents the different hierarchies, forms and experiences of exception Palestinians confront in their daily lives. It classifies four States of Exception: the State of Exile and Refuge; the State of Paradox; the State of Occupation and Siege: and the State of Urbicide. A detailed analysis of the States of Occupation, Siege and of Urbicide to demonstrate the several levels and experiences of exception is also presented. These experiences can be noted in phenomena from the legal and juridical framework of the Israeli occupation to the spatial surveillance, to the socio-cultural and economic dimensions of daily life, to the perceptual impacts of Urbicide on people's understanding of self, other and place. An analysis of the Palestinian modus of resilience and resistance is then explored. The paper's main arguments and analyses demonstrate that there are different forms of exception that are not limited to the juridical and legal aspects of Agamben's explanations of the State of Exception. These analyses also reveal how the Palestinians, through their resistance, constitute a real agency in shaping the geometry of the conflict. Agamben presents the State of Exception as the normal state of affairs versus the State of Exception, inside/outside sovereign/homo sacer, normal/abnormal, private/public and so on. The State of Exception for him is where an absolute use of power is performed by the sovereign against the victim who has no agency of resistance or rights as all laws are suspended and all notions are confused. It is argued that although these conditions are present in the Palestinian States of Occupation, Siege and Urbicide, using the previous juridical argument of Agamben alone might prove a barrier as it will hinder the understanding of the other hidden tensions and actions that take place within that State of Urbicide. However, it can be stated that there is a Palestinian State of Exception, but the Exception takes different forms and operates with different dynamics. The Palestinian States of Exception entail all aspects of life – not only the juridical and legal – creating multilevels of Exception that perpetually destroys and regenerates itself in an extreme form. Thus, this paper calls for a redefinition of the Palestinian States/Spaces of Exception that can explain this condition in its complicated, interconnected, and interactive layers, forms and dynamics.

Reconciliation and transformation in practice: Aboriginal judicial appointments to the Supreme Court

On 19 April 2004, Prime Minister Paul Martin signalled Canada’s willingness to embark on a new collaborative relationship with Canada’s aboriginal peoples. At the Canada-Aboriginal Peoples Roundtable, he stated, ‘‘We will ensure a full seat at the table as we have ensured today to aboriginal communities and leaders. No longer will we in Ottawa develop policies first and discuss them with you later. This principle of collaboration will be the cornerstone of our new partnership.’’ The former prime minister’s statement has been interpreted as an opportunity to begin a process of reconciliation between aboriginal and nonaboriginal peoples. As aptly noted by Assembly of First Nations Grand Chief Phil Fontaine, all efforts at reconciliation will require transformative change, which in turn will entail a multifaceted approach to achieve both procedural and substantive reform. This includes the manner in which Canada addresses the constitutional rights of aboriginal peoples, as well as the content of existing laws and policies. As the scope of aboriginal and treaty rights broadens and the depth of the judicially imposed consultation requirement becomes more apparent, we must begin to critically assess the impact such political and legal developments might have on the appointment process to the court of last resort. Transformative change can and should entail accommodation of aboriginal legal traditions within Canada’s pluralistic state. In this article, we will discuss how the appointment of aboriginal justices is one means by which indigenous legal traditions can be accommodated within Canada’s juridical framework. This premise will be justified from both philosophical and legal bases.

The organizational principles of the Brazilian Health System: a study of the theoretical and juridical framework on the basis of the theory of social representations

This study examines elements representing the organizational principles contained in the theoretical and juridical framework of Brazil’s Unified Health System (SUS). It is a qualitative study conducted on the basis of the Theory of Social Representations using the technique of thematic content analysis applied to Laws 8080/90, 8142/90, NOB 91, NOB 93, NOB 96, NOAS 2001, NOAS 2002 and the 1988 Federal Constitution and Rio de Janeiro State Constitution. The results revealed 531 units of analysis, grouped in four categories: system decentralization, health system hierarchization, health services regionalization and social participation. Connecting and orienting the categories was the SUS principles as a representation organizing the health system, at the same time as the municipality emerged as an image-based dimension of the representation, around which all the principles organized. Decentralization figured prominently as content in the representation, while the documents, in their practical aspect, place particular importance on municipalization as one of the goals of the system. Funding appears only in the decentralization category, representing nearly half its content. The study concludes that these documents were drafted in a dynamics comprising movements seeking to organize the system, as well as to reconcile among representations present in society. It was particularly important to study the theoretical and juridical framework of the SUS on a Theory of Social Representations approach, which revealed the endeavor to construct a new representation of Brazil’s health system appropriate to the demands and expectations of various social groups in interaction.

Global Terror, Global Vengeance?

It seems generally accepted that the attacks of September 11, 2001 in New York and Washington mark the beginning of an era of a new kind of violence. We are supposedly dealing with a form of terrorism so exceptional that it makes traditional concepts of war obsolete. Classical warfare between nations or alliances always involved States, and remained within the armature of recognized international law. It is said that the current struggle against terrorism no longer fits into this conceptual and juridical framework. Thus September 11, 2001 presumably made us cross a new threshold in that it manifested a type of violence that radically changed the nature of modern conflict. Such a conclusion is seductive and can seem well-founded.

AGRICULTURAL LAND AND BANK CREDITS

When granting credits, commercial banks can take a gricultural land as guarantee. Because the three components of agricultural farm a re land, work and capital, we consider that evaluation of agricultural land is of extreme importance when accepting it as a guarantee for the solicited credits for agricultural use. Agr icultural customers prefer to offer land as guarantee for mortgage instead of personal houses o r apartments for real estate mortgage. In Romania after 1990, commercial banks have been reticent in accepting agricultural land as guarantee upon granting credits for agriculture, du e to difficulties that have appeared in the process of applying legislation in this domain. Thi s attitude of the banks has also been motivated by the following reasons (Harangus, 2004): - lack of a functional land market; - non-existence, up to 1998, of a complete and cohere nt legal framework concerning selling and owning agricultural land; - late procurement of title deeds by agricultural lan d owners; - difficulty in establishing the value of agricultura l land that could be taken into consideration as credit guarantee; - difficulty of the bank to establish the value of th e land of a debtor because of the pre-emption right upon alienation of any of the agr icultural lands . In 1998, Law nr. 54/1998 regarding juridi cal circulation of land established a juridical framework for the land market. The difficulty in ev aluating the land of agricultural lands consisted also in the evolution of the number of ho useholds and their small surfaces. Evaluation of agricultural land is an extremely dif ficult task as the evaluator has to take into account and to analyse information regarding indica tors specific for a particular cultural area (Mertz, Wadley & Christensen, 2005). Such information can be obtained from the centres for agricultural consultancy and from agricultural spec ialists. Because of the complexity of methodologies for evaluation of agricultural land, namely the six new standard methods of evaluation of agricultural lands, the banks have di fficulties in establishing the value of the collaterals that can be considered as guarantees fo r credits granted to agricultural customers. REFERENCES

Corrupción política y responsabilidad de los servidores públicos

Este ensayo responde a la pregunta por la naturaleza o el concepto de corrupción e intenta justificar el marco ético-jurídico desde el cual es posible pensar en algunos frenos institucionales contra la misma: el Estado democrático de Derecho y, específicamente, la responsabilidad de los servidores públicos. Con relación a estos últimos se analizan los principios de acceso a la información y publicidad o transparencia.

Extending the Application of an Arbitration Clause to Non-Signatories: Which Law Should Apply?

Arbitration law imposes strict form requirements on arbitration agreements, but once these are met, the subsequent question of who is a proper party to the agreement may be determined without reference to similar requirements. One such question is whether a third party, which is not a party (or 'signatory') to the contract containing the arbitration agreement, may nevertheless be bound to arbitrate. While various legal doctrines in various jurisdictions permit third party non-signatories to be bound to contracts, arbitral tribunals encounter difficulty deciding which law, rule or principle should ultimately determine the matter. As long as this question is determined by reference to national laws, transnational business actors face a juridical framework that is complex, but predictable nonetheless. However, some arbitral tribunals have decided this question by reference to a broader set of principles including lex mercatoria, bona fides, or agreement of the parties. The availability to arbitral tribunals of divergent laws, principles and approaches to resolving this question creates considerable uncertainty for transnational actors.

Expertise psychiatrique de prélibération

Missions of psychiatrists in charge of expertises relating to pre-release of persons are regulated within a juridical framework elaborated by the penal policy of the current society. These missions are undertaken within the strict limits not only of medical ethics and deontology but also of those of the corpus of the current criminology and psychiatry. Taking into account the possible gaps between policy and corpus the legitimate desire of satisfying social orders; of executing judicial rulings and of helping magistrate's decisions should not lead the psychiatric expert to the illusion of omnipotence and of knowing everything and most of all to ignorance of major difficulties of prognosis of acting out, i.e. of uncertainties inherent to the concept of dangerousness contrasting with the gravity and the increasing number of decisions that the psychiatrist inspires and pretends justifying. Only a truly conscientious, attentive expert work that conforms to acquired scientific data can serve the cause of justice and contribute to the development of forensic psychiatry, and of psychiatry itself, notably in that which concerns illnesses that may favour transgressions.