Juridical Tradition Research Articles

Sovereignty and regional integration in Latin America: a political conundrum?

There is an inherent contradiction between the regional integration projects in Latin America, albeit rhetorically conducted, and the staunch defense by most countries of their national sovereignty, which restricts and opposes many liberalization mechanisms implicit in, and necessary to, the integration processes, based on the rendition of sovereignty in some areas of economic relevance, including, and especially, trade and industrial policies, as well as other sectorial measures. The dilemma is historically compounded by a juridical tradition that places the retraction into an introverted version of the sovereignty principle into the context of conceptual elaborations well known in the international law, such as Calvo doctrine and the Drago principle. Brazil is one of the most resolute promoters of the national sovereignty principle among Latin American countries, clearly expressed in its constitutional chart and foreign policy stances, since the Second Hague peace conference of 1907. Other Latin American countries, mainly in Central America and the Caribbean, are much more motivated by real concerns over recurrent United States interventionism in the regional, in some cases by military means. This framework has somewhat infringed on integration projects, which is also hindered by economic nationalism and state interventionism.

Трансформация суфизма в свете религиозной политики и переселений горцев в Дагестане 1930-1990-х гг.

The Soviet government's post-WWII resettlement policy as well as the spontaneous migrations of highlanders to the lowlands in the 1990s has deeply modified vectors and contents of the development of Dagestan's religious culture. Despite the harsh measures successively taken by the Soviet power against Sufism, and the overall secularization policy implemented in the USSR, rural mass migration from uplands to lowlands produced unprecedented change in the level of religious consciousness and of religious culture among open country dwellers. Lowland districts, initially secularised after the antireligious campaigns of the 1920s-30s, were transformed in the 1950s-80s by the immigration of settlers from the highlands into major religious centres with different types of religious culture, from the Sufis of varied affiliations to non-Sufi bearers of the Shafii juridical tradition and recent Salafis, endowed with the diverse confessional cultures borne, respectively, by dwellers and settlers.

Ativismo judicial: nos limites entre racionalidade jurídica e decisão política

O presente artigo tem como objetivo encontrar parâmetros para que se possa determinar quando o ativismo judicial deixa o âmbito da argumentação jurídica e se torna instrumento de decisão política. Para tanto tentamos definir um possível conceito de ativismo judicial e as suas origens na tradição jurídica estadunidense. Nesse primeiro momento utilizamos o método histórico analítico para contextualizar historicamente as categorias conceituais em estudo e o momento de surgimento do fenômeno nos Estados Unidos. Em seguida, passamos a estudar, com base no método crítico-comparativo, os elementos fundamentais que caracterizam a racionalidade política e a racionalidade jurídica. Ao final, discutimos as perspectivas para um juiz ativista no Brasil, especialmente quando atue na proteção dos direitos fundamentais e na garantia da supremacia da Constituição. Em termos gerais, nossas conclusões apontam critérios que permitam a definição do que seria um ativismo judicial positivo, em detrimento da sua espécie nociva à saúde da ordem constitucional.

The impact of climate change on indigenous people – the implications for the cultural, spiritual, economic and legal rights of indigenous people

Scientific evidence has established that athropogenic carbon pollution and climate change will have a catastrophic and devastating impact on indigenous people.1 Sadly, many of humanity's oldest people face the loss of their traditional homelands and the extinction of their people as early as 2050,2 which represents one of the greatest losses and tragedies to the human family and one of the most serious crimes in human history. The aim of this article is to therefore critically examine the impact of climate change on indigenous people and to assess the legal rights available to those communities to seek redress. Part 1 of the paper shall examine the catastrophic and devastating impact of climate change on indigenous people. Part 2 of the article shall provide a survey of the most recent legal decisions at a national, regional and international level and provide an analysis of the emerging academic commentary in the field. Part 3 of the article shall critically examine the major historical, philosophical and institutional limitations of the Western juridical tradition to protect and uphold the rights of indigenous people. As such, the focus of the paper is strictly on litigation and it does not engage with the vitally important issues of policy, mitigation and adaptation, from which, in any case, indigenous people have been largely excluded.3 While there have been positive developments in case law, the literature reveals that climate change litigation offers little hope for indigenous people. The article will conclude by arguing that current domestic and international legal systems as presently constructed are incapable of protecting the unique rights of indigenous people and culminates in a call for the establishment of an International Court for Human Rights and an International Court for the Environment to prevent the destruction of the traditional homelands of indigenous people and the extinction of humanity's oldest people.

ʿAbd al-Qādir al-Jazāʾirī, Migration, and the Rule of Law: ‘A Reply to Certain Persons of Distinction’

This article will deal with a text authored by Abd al-Qādir alJazā’irī during the later years of his rule in what is now Western Algeria.1 Ostensibly a justification for some of his major policies through recourse to Mālikite (and to a lesser extent Shāfiī) juridical traditions, this text is a suggestive of understanding Abd al-Qādir’s religious politics. As well as presenting legal precedents, it illustrates several of Abd al-Qādir’s views on the primacy of divine law, its relationship with Sufism, and its place in the history of IslamoChristian contact and conflict in the Western Mediterranean. It is hoped that this article will contribute to the general understanding of Abd al-Qādir by elucidating his moral and ideological perspectives from a textual basis. This article will also inform the question, implicit in many historical discussions, of whether Abd al-Qādir’s rule in Algeria an instance of rule of law or rule by law. The Arabic text is reproduced as a chapter of Muḥammad Bāsha bin Abd al-Qādir al-Jazā’irī’s Tuḥfat al-zā’ir fī tārīkh al-Jazā’ir

Secular States, Muslim Law and Islamic Religious Culture: Gender Implications of Legal Struggles in Hybrid Legal Systems in Contemporary West Africa

This article sets out the differing approaches of three West African states (Niger, Senegal, and Nigeria) towards reconciling the multiple legal systems (Islamic, western, military) they have inherited as ostensibly secular states in regions with prominent Muslim populations. While Senegal has adopted a Family Code that appears to modify and regulate some of the perceived injustices of Islamic law in family life, a number of states within Nigeria have gone in the opposite direction, expanding Islamic law beyond family law into the criminal domain. In Niger, on the other hand, multiple systems of law co-exist uneasily, without any effective hierarchy or definitive conclusion to legal disputes carried into different legal domains. In all three cases the state does not have the capacity to effectively enforce a single coherent legal system, nor does it succeed in controlling the «justice» that so commonly occurs in extra-legal settings. Throughout West Africa legal reform must contend with the dual problems of weak state capacity to impose a unified legal system and of the vigilantism of pressure groups that may have limited mastery of the Islamic juridical tradition in an atmosphere that is nevertheless heavy with the rhetoric of a return to Islamic purity.

Islamic Biomedical Ethics

Immediately distinctive of Sachedina’s approach to biomedical ethics is hisconception of the Shari`ah as an integrated legal-ethical tradition: TheQur’an provides jurists with moral underpinnings of religious duty, and thegrounding texts are to be taken as an ethical standard of conduct. Legal rulingsare to be extracted accordingly. In short, the Islamic juridical tradition(usul al-fiqh) presupposes ethics.Sachedina argues for an ethical foundation – a strong epistemologicalclaim– and concerns himself with conceptual bases ofmoral reasoning ratherthan with juridically derived judgment per se. He elucidates deontologicalteleologicalprinciples that are “cross-culturally communicable” yet appreciativeof “situational exigencies.” In contrast to the juridical objective ofissuing legal opinions (fatwas), bioethical pluralism motivates Sachedina’spreference for recommended moral conduct (tawsiyah). He therefore movesaway from the tendency of some scholars to conceive of bioethics merely as“applied Islamic jurisprudence.”The author’s epistemic and hermeneutic commitment commends hiswork, given the two facts that he identifies: (1) informed public debate oncritical issues of biomedical ethics within Islam is lacking, relative to thedegree of democratic governance, and (2) the epistemological and ontologicalbases of ethical inquiry remain underdeveloped in the Muslim seminariancurriculum. Consequently, there is a critical need to demonstrate toreligious scholars that Islamic ethics have much in common with secularbioethics and thus that an opportunity for dialogue exists ...

Informationalising Matter: Systems Understandings of the Nanoscale

Themes of mastery, domination and power are familiar to any scholar of modern technology. Science is commonly cast as enabling the technological control over both the natural and physical worlds. Indeed, Francis Bacon famously equated scientific knowledge with power itself—stating that ‘knowledge itself is a power’ (Bacon in Montagu 1825, 71). Bacon’s now ubiquitous phrase—commonly repeated as the banal ‘knowledge is power’—was an attempt to combat three heresies in scriptural interpretation by asserting the conjunction between biblical knowledge and divine power. Opening his critique of the heresies he states: ‘You err, not knowing the scriptures nor the power of God’. In this sense the equation made between knowledge and power is of cosmic significance for Bacon in that knowledge is fundamentally associated with divine power. This image of scientific knowledge, method and rationality is deeply seductive. In this Baconian mode scientific method is irreducibly associated with human mastery over natural systems and the material world. In this image science and technology are defined as a kind of power over the physical world—the power of knowledge, method and the logos over nature, myth and irrationality (Winner 1978). In its original Latin sense—ipsa scientia potestas est—the word that translates in English as simply power is a in fact a specific type of power. Potestas is defined as ‘power over’—with particular resonances with political and juridical traditions in Roman law. That is, knowledge is equated not simply with personal capacity. Rather, knowledge produces the power of mastery, domination and coercion...

The Role and Place of Public Relations during the Communication Process

Although the term of public relations has never been used before the XX th century, the civilized man has been practicing some empirical forms of the public relations even from the time of forming the social groups. The communication process has replaced the interpersonal consensus and the communication's development has lead to socialization. In Romania, public relations have become a discipline that students study in schools and universities, offering basis notions about the human communication process. Meanwhile the governmental institutions and the business organizations have become conscious about the public relation's importance for their activity's success. Public relations are now essentials for a modern life; therefore, social development cannot be conceived without them. Their existence is organized and developed by the specialized structures which are active, dynamic and innovative. After the First World's War there has been noticed a growth of the interest towards the techniques of public information, this favorable current having a strong development after the World's War II. Public relations have become a well-known and accepted profession and, despite the opposition and the suspicions manifested by a part of the mass media, the information services have been growing fast as institutions. The history of some of the public relations' components identifies with the history of the human communication itself. During the ancient civilizations (Babylonian, Egyptian, Greek and Roman), people were convinced to accept the political, military or religious leaders by various instruments, used even in our days: direct communication, speeches, persuasions, etc. Although our contemporaries have invented the rules of constructing a speech, these rules people have known and used them since Platoon's time. Different forms of communication between men meant to gain confidence, popularity and the public support have evolved together with human society's evolution and development, even though during the human society's development we cannot talk about a conscious and systematic activity of the public relations. Starting with the XX-th century though, public relations have started to develop in a beginner phase in the U.S., afterwards they gained a special attention in Great Britain, Canada and Australia, countries of which juridical and cultural traditions have as a basis, like in the U.S. the English legislation.

A retórica prostituída e a cientificidade necrosante do direito

Nas tradições filosófica e jurídica brasileiras, o estudo da Retórica é insuficiente, diante da imensidão temática que essa disciplina tem a oferecer: isso é o que se nota nos mais importantes programas de pós-graduação. Como causa provável, apontamos para um temor inerente aos estudos desenvolvidos na filosofia e no direito, um receio que emerge como ponto fraco de teorias que se pretendem afirmadoras absolutas do verdadeiro. Nossa proposta é retomar o estudo da retórica, buscando demonstrar quanto ambas as tradições perdem ao se eximirem do papel fundamental do discurso opinativo no âmbito de suas disciplinas. Contudo, pretendemos sustentar a tese de que, por força de suas formas discursivas, a retórica foi prostituída e, conseqüentemente, o direito começou a morrer.

Orden jurídico e identidad política en los albores de la recepción del derecho común (sobre los Forais de Coimbra, Lisboa y Santarém)

Although Portuguese historians have already paid special attention to the recognition of Portugal as a kingdom by Pope Alexander III, this very fact has not yet been connected to another singular contemporary fact: the simultaneous concession of «forais» to the towns of Coimbra, Lisbon and Santarem, by king Alfonso Enriquez. The assumption, as an initial working hypothesis, that there is a possible causal relationship between both facts, as well as seeking to verify such hypothesis by means of a critical analysis of the documents respectively embodying the action of both Pope and King, lead to remarkable results about the redaction process of these «forais», where, while keeping within the bounds of the current historical and juridical traditions, it also occurs the reception of the «Ius commune» principles, depicting the first Portuguese king as «Imperator in regno suo».

Jews and Christians in Almoravid Seville as Portrayed by the Islamic Jurist Ibn Abdūn

This article examines the way in which Jews and Christians are portrayed in the hisba treatise by the Andalusian Islamic jurist from Seville, Ibn c Abdūn (12th century). The first part is devoted to describe his comments on these religious communities in connection with previous Islamic juridical tradition. The second one deals with the relationship between the theoretical and practical dimensions of the juridical information that he provides in regard to the influence of the Almoravid rule over the legal conditions of Jews and Christians. Finally, the article includes an appendix with the English translation of Ibn c Abdūn's references to Jews and Christians.

Jews and Christians in Almoravid Seville as Portrayed by the Islamic Jurist Ibn cAbdūn

AbstractThis article examines the way in which Jews and Christians are portrayed in the hisba treatise by the Andalusian Islamic jurist from Seville, Ibn cAbdūn (12th century). The first part is devoted to describe his comments on these religious communities in connection with previous Islamic juridical tradition. The second one deals with the relationship between the theoretical and practical dimensions of the juridical information that he provides in regard to the influence of the Almoravid rule over the legal conditions of Jews and Christians. Finally, the article includes an appendix with the English translation of IbncAbdūn's references to Jews and Christians.

Customary Law and the Nationalist Project in Spain and Peru

Customary Law and the Nationalist Project in Spain and Peru

La noción de ciudadano en Francia de la Ilustración a la Revolución: Definiciones, normas y usos

The history of elections during the French revolution shows how a new con ception of the rights of the citizen couples with elements of humanist and juri dical traditions, in order to invent democratic practices: the liberty and autonomy of the subjects and the right to vote constantly apply to taxpayers citizens. Dictionaries and uses of the notion of citizen ascertain the conceptual change with shades of meaning: several figures of the citizen emerge while the practical accomplishment of citizenship, in its democratic and republican dimension, calls into play different social theories already at work in the Encyclopedie . That is what I want to show in analysing the way the «figure of the taxpayer citizen» emerges in the last volume of the «dictionnaire raisonne», in the wake of the theory of Rousseau's Contrat social .

Fra lex e pugna : il placito di Garfagnolo (1098)

Considering once again a text like the well known and often studied ‘placito di Garfagnolo’ may allow us to focus on some mosaic tesserae , but even so the layout of this mosaic is still enigmatic. In a dialectic pattern between German law (normation by palatine Capitularia as well as juridical tradition, custom and rites) and Roman law (transmitted through the cultural mediation of the Church, but also rediscovered and reconsidered in the last decades of XI century), between solemn oaths and judiciary duels on one hand, and allegations of written law as well as royal and imperial documents on the other hand, we discover falsified documents produced in trial as evidences of proof, written by a well-read, highly capable scribe, still unknown to us, most certainly connected with Reggio Emilia’s bishopric.

SOCIETY, ECONOMY, AND POLITICS IN RESTORATION ITALY: TOWARDS A REGIONAL SYNTHESIS

Recent scholarship on the Restoration period in Italy (1815–60) has put the accent on regional diversity and on particular developments within the different pre-unification states. In particular, recent studies on the Kingdom of Sardinia have added much to our view of the Piedmontese nobility's peculiar character and ability to maintain its identity through time. Equally, detailed studies of the economy of nineteenth-century Tuscany have emphasized the importance of banking and silk manufacturing, whilst studies of governmental policies in the Papal State have shed new light over a particular administrative monarchy's attempt at pursuing a policy of reconciliation between modernization and conservatism. Whilst these studies have shown the significance of regional developments during the Restoration, other studies have argued that the process of ‘inventing’ the Italian nation-state has led to a conscious obliteration of regional administrative and juridical traditions and have shown the way to the construction of an up-to-date regional synthesis of a historical period which is much more than a simple prelude to the unification of the country.

Edith Wharton and the Fiction of Marital Unity

Edith Wharton's The House of Mirth (1905) and her later novel The Glimpses of the Moon (1922) bear a striking resemblance to each other, and the relationship between the two novels sheds light on Wharton's oeuvre as a whole. 1 The House of Mirth and The Glimpses of the Moon measure Wharton's evolving imaginative attempt to salvage American marriage. When juxtaposed, the two novels call out to be explored with respect to the legal moment to which they so clearly speak. Employing similar scenarios, the novels evaluate competing claims within the legal definition of marriage--claims that were increasingly set at odds during Wharton's time. Placing the novels within their legal context not only clarifies the central problem each novel addresses but also illuminates the limitations of Wharton's novels, as well as their continued cultural relevance. Wharton's vision ultimately did not move beyond the legal framework that structured her analysis of marriage, and her preoccupation with the law's terms created an unresolved tension in her fiction. This tension is itself revealing, for it prefigures a broader social inability to resolve the contradictions inherent in marriage law since its inception. Situating The House of Mirth and The Glimpses of the Moon within the legal moment that shaped them also brings us closer to grasping the paradox that seems to govern Wharton's marriage novels. For while Wharton's novels consistently critique marriage, they simultaneously insist [End Page 947] upon its importance in social life. Once we understand the juridical tradition within which Wharton deliberately places her novels, we can better appreciate the social value she ascribes to marriage and her desire to rehabilitate the institution in America.

A política e as bases do direito educacional

Este ensaio alude à relação entre sociedade, Estado e direito, tendo como elemento mediador a educação. Inicialmente, faz-se a exposição dos momentos distintos e marcantes da política social no século XX no Brasil: o primeiro período: a política social como controle da política (1930-1954); o segundo período: a política social como política de controle (1964-1988); o terceiro período: a política social sem direitos sociais (depois de 1988). Em seguida, passam-se por exame as idéias de sociedade civil; de cidadania; de direitos civis, políticos e sociais; caracterizando o chamado estado de direito democrático e indicando alguns elementos básicos da democracia. A Constituição Federal de 1988 consagra o estado de direito democrático e explicita a política educacional a ser implementada no Brasil. Tal política educacional é amplamente comentada, levando em conta os inúmeros artigos do texto constitucional e seus vínculos com tratados internacionais, anteriores, contemporâneos e posteriores a ela, no campo educacional. Além disso, a Constituição Federal reforça a tradição jurídica da educação nos textos constitucionais brasileiros, dando a ela a presunção de constitucionalidade. Na verdade, a Constituição de 1988 estabelece o regime jurídico da educação, por meio de diferentes artigos espalhados ao longo dela, convertendo-a em direito público subjetivo, o que é fundamental, porque os habitantes do Brasil têm direito de requerer ao Estado a prestação educacional, sob pena de ser responsabilizada a autoridade competente para oferecê-la. Há no ensaio a demonstração de que o Direito Educacional não se limita à simples exposição da legislação do ensino, pois a educação é um bem jurídico, individual e coletivo, embora as determinações constitucionais nem sempre sejam cumpridas.

El análisis de las políticas públicas

This article presents to public health professionals concepts and perspectives from political science relevant for creating a healthier public policy. Currently, there is no uniform vision of what constitutes public interest and the decisions of public administrations tend to be based on compromise. In public debate, what is paramount is the capacity to persuade. From the perspective of public policy analysis, the crucial issue is definition: the final decision depends on the definition of the problem that has emerged triumphant in the public debate among competing actors with different definitions of the problem. From a policy analysis perspective, the problems entering the agenda of public administration does not necessarily correspond to their severity, as competing actors try to impose their point of view. Because of its historical evolution, the Spanish political system has specific traits. The relatively weak democratic tradition tends to make the decision process less visibles, with strong technocratic elements and weaker social articulation. Both the juridical tradition and liberal rhetoric portray lobbying as contrary to public interest, when in fact it is constantly performed by powerful vested interest groups, through both personal contacts and economic connections. Regulatory policies, with concentrated costs and diffuse benefits, seem to be moving from Spain to the European Union. To promote healthier public policies, the development of civil society initiatives and the building of coalitions will play an increasingly greater role in the future.