Jurisprudential Foundations Research Articles

Analysis of the Jurisprudential Foundations of Financial Penalty in the Context of Tazirat (Disciplinary Measures)

Financial fines or penalties are among the most prevalent deterrent measures against crimes and offenses in contemporary times. This issue has long been a subject of controversy among Islamic jurists. Two viewpoints, the permissibility and impermissibility of monetary fines, have been advocated by Islamic scholars. Both sides present their arguments supported by evidence. The question arises: which viewpoint, in the present time, is more effective, the permissibility or impermissibility? This article, considering this question, examines the reasons presented by both factions, the permissibility, and the prohibition, and discusses the factors causing differences in opinions. The conclusion drawn is that the permissibility of monetary fines is preferred based on relying on verses, narrations, the actions of the companions of the Prophet, analogical reasoning (Qiyas), prioritizing public interest, societal well-being, the necessity of preserving order, and it appears to be more effective as a deterrent measure compared to other forms of disciplinary measures in this era.

The Role of the Jury in Expanding Public Freedoms

The establishment of a jury in the judicial system, particularly in the adjudication of political and press-related offenses, can serve as a safeguard for public freedoms. However, the mechanism by which this jury is selected and its orientation can influence societal perception, potentially either supporting or undermining public freedoms. In Iran, despite the longstanding presence of the jury institution, it has yet to achieve an appropriate standing, with the roots of this issue lying in the selection process of its members and the lack of clarity regarding its jurisprudential foundations. The structure and function of the jury are based on the popular election of members, the judge's attention to their decision, the absence of judicial expertise, and the lack of intervention by jury members in the judgment itself. The jurisprudential perspective on this matter has not yet been adequately defined within Iranian law. Therefore, given the sensitivity and importance of public freedoms, the establishment of an independent jury in political and press trials could at least partially guarantee this aspect of freedoms in Iran.

Evaluating the Construction and Limitations of Opportunism Principle in Indonesian Judiciary

This research scrutinizes the construction, limitations, and parameters of the opportunism principle concerning public interest within the framework of progressive law in Indonesia, employing a normative legal research methodology. The study intricately analyzes legislative regulations through the lens of progressive law theory, incorporating primary legal materials such as the 1945 Constitution of the Republic of Indonesia, the Criminal Procedure Code, and the laws governing the Judiciary and the Prosecution Service. The preliminary findings indicate a nebulous state in the conceptual evolution of the opportunism principle in Indonesia, characterized by a lack of explicit standards and limitations in its implementation. Furthermore, the study identifies a pressing need for a more stringent selection mechanism and orientation towards the opportunism principle for prospective Attorney Generals to foster legal certainty and diminish community legal uncertainty. This study aims to contribute towards fostering a robust jurisprudential foundation, enhancing the role and moral authority of the Attorney General in the criminal justice system.Highlights: Conceptual Ambiguity: Current ambiguities in the opportunism principle necessitate clearer implementation standards in Indonesia. Legal Reforms: The study advocates for pivotal legal reforms to bolster the Attorney General's moral authority and role within the justice system. Implications on the Attorney General's Role: The research highlights the necessity for improved training and stricter selection procedures for prospective Attorney Generals. Keywords: Opportunism Principle, Progressive Law, Indonesian Judiciary, Legal Certainty, Attorney General

Principle and Policy in Malicious Prosecution

Judicial consideration by the Judicial Committee of the Privy Council, and the United Kingdom Supreme Court, of the tort of malicious prosecution – historically confined to criminal prosecution and limited civil proceedings – demonstrates considerable confusion in Common Law systems over the roles of principle and policy in judicial reasoning. As judgements extending malicious prosecution to maliciously motivated civil claims demonstrate, the principles and policies underpinning malicious prosecution and abuse of process, and the relationship between these torts – regarded by judges and jurists as anomalous – remain unclear. Other common law jurisdictions are yet to positively affirm the revised malicious prosecution tort’s applicability to civil proceedings, and the few plaintiffs to plead the expanded tort to date have been unsuccessful. While the harms arising from maliciously brought civil proceedings understandably excite sympathy, this article contends that expanding malicious prosecution to civil claims via common law reform is a problematic solution resting on unsound jurisprudential foundations, which faces potentially insurmountable evidentiary barriers and necessitates further litigation. We suggest that a better alternative is to encourage greater use of the court’s existing inherent jurisdiction to award compensatory costs and propose introduction of punitive statutory costs powers, available in extreme cases, to deter litigants from initiating civil claims prompted by malice.

A JUDICIALIZAÇÃO DA SAÚDE E OS FUNDAMENTOS UTILIZADOS NAS DECISÕES DOS JUIZADOS ESPECIAIS FEDERAIS CÍVEIS DE SÃO LUÍS – MA

Objectives: In view of the increasing role of the Judiciary in the implementation of public health policies, the Federal Special Courts (JEFs) appear as an important instrument of access to justice for those in need of protection involving the right to health. In this research we seek to understand the phenomenon of the judicialization of public health in Brazil, with an emphasis on the peculiarities of this type of demand within the scope of the Special Federal Civil Courts. We analyzed the ethical, factual, normative, and jurisprudential foundations used in the decisions of the JEFs of Sao Luis / Maranhao-Brazil, from March 31, 2014 to March 31, 2019. Methodology: We start from the deductive method with a qualitative and quantitative approach, with a bibliographic and documentary procedure. In the qualitative approach, to categorize the information obtained, the content analysis method was used, with categorization, inference, description, and interpretation as methodological procedures. Results: We demarcate that, given the absolute competence of the Civil JEFs, it became essential to correctly define the economic expression intended with the cause, as a way to avoid delay in the provision of health protection. We observed that there is a prevalence of ethical motivation in the basis of the judicial decisions analyzed, we also found that the instruments developed by the National Council of Justice (CNJ) were precarious in improving the jurisdictional provision in the case of health demands. Contributions: We raised the need to build mechanisms capable of guaranteeing similar judicial provision for similar situations, as a way of eliminating any kind of judicial lottery. There is a need to comply with the instruments developed by the National Council of Justice (CNJ) and the Ministry of Health (MS), as a way of guaranteeing good faith and legal security in the demands on the subject.

On the Legal Attributes of Digital Currency

Digital currency has been widely used ever since the concept of Bitcoin was formulated. It uses blockchains as its underlying technical support and is characterized by decentralization, programmability, and security verification based on the principles of cryptology. Generally speaking, theories on the legal attributes of digital currency regard it either as non- monetary property or as currency. The former theory can be subdivided into theories on digital currency as commodity, as securities or as data. All of these subdivisions present insurmountable theoretical difficulties and practical obstacles. If we return to the substantive nature of currency as a generally accepted accounting symbol, it can be seen that currency issuance by the state or a private bank is simply a means of building currency credit rather than a necessary condition. Unlike traditional currency, digital currency relies on blockchain technology to complete the construction of decentralized currency credit. This has resulted in a new theory of currency based on the theory of digital currency. On the one hand, it offers a jurisprudential foundation for the construction of the quasi-currency attributes of digital currency; on the other, it provides a theoretical basis for the gradual improvement of digital currency legislation. We can first determine the legal attributes of digital currency as a quasi-currency and then confirm its legal position when the time is ripe. We need to confirm the legal status of digital currency as a quasi-currency through legislation, and use this as a logical starting point for the construction of a series of legal systems for digital currency as a quasi-currency. Digital currency can easily be used as a tool for crime or for evading financial controls; therefore, we need to determine a regulatory body and formulate regulatory rules.

Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency

The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.

Office and contracting-out: an analysis

This article investigates whether the phenomenon of ‘office’ might be sensitive to the legal forms within which it might manifest or with which it might come to interact. It does so by considering the fate of office in the context of contracted-out government service delivery. After establishing the jurisprudential foundations for its inquiry, the article outlines and analyses two case studies of contracting-out in which the idea of ‘office’ occupies a central place. The article suggests that these case studies invite the thought that contracting-out and office are inherently at odds: that the former operates to interrupt, displace, reduce, or even negate the operation of the latter as a distinctive mode of agency that arises within relationships of public authority.

The Philosophy of Unfair Dismissal Law in Nigeria

In Nigeria, the past three decades have witnessed a steady growing private sector, but the relationship between employers and employees continues to be a turbulent one and a source of unending litigation. This situation is worsened by the dwindling state of the economy. Paid employment continues to constitute the major source of livelihood of many families and this has made it an important source of livelihood in majority of the households in Nigeria. However, with the employment relationship comes an inherent conflict of interest between the employer and the employee. How best to manage this conflict has been left to the different nations to determine. In Nigeria, the law governs the cessation of an employment relationship but the statute governing dismissal is seemingly still a relic of the received English law as at 1900. The failure to bring the provisions of the statute on dismissal in tandem with the current day realities has brought about a distortion of the balance of interest between the employer and employee. In a bid to ensure stability, the concept of fair dismissal evolved. The aim of this paper is to critically examine the fundamental nature, attitudes, realities, existence and theories that act as guiding principles for unfair dismissal law in Nigeria. This paper examines the evolution of the labour law jurisprudence on unfair dismissal, and its jurisprudential foundation in Nigeria. It seeks to reveal the historical, moral, and cultural basis of unfair dismissal law. The article focuses on finding the answers to such abstract questions as what is unfair dismissal law? and how do judges decide such cases?

Sociology of Law: An Overview of Jurisprudential Foundations

Sociology of Law (SoL) is one of most complex concepts within the jurisprudence realm of modern times. Being an interdisciplinary approach, it is such a dynamic notion, which cannot be limited within particular periphery; rather it revolves round the entire dimensions of the law with its nucleus on society. This paper endeavours to examine the basic jurisprudential foundations of SoL as highlighted by the key jurists in their literatures.

Pragmatism as the philosophical or jurisprudential foundation for mixed methods legal research?

Pragmatism as the philosophical or jurisprudential foundation for mixed methods legal research?

A Study of Legal Innovations of Criminal Procedure Code Adopted on 2014 February 23 concerning Observation of Privacy and Preservation of Personal Secrets in the Porcess of Criminal Procedure from the Point of View of Citizenship Rights relying on Quranic Verses and Prophetic Traditions

Privacy and preservation of personal secrets as one of the most important factors of protection of social security as well as the citizenship rights in view of their importance have been taken into earnest in the constitutional laws of the countries and international community insofar as the legislator has adopted new measures in order to protect the citizenship rights and for the sake of better observation of these rights. Thus, some specific laws have been legislated in the area of the rules and formalities of criminal procedure. Formal laws of our national criminal procedure, in the face of the challanging paradox of securing the interests of the convict and preservation of the social interests and of course under the influence of Islamic jurisprudence and trans-national legal codes, have reached the apex of their evolution in the domain of observation of the citizenship rights of the convict who is more than anyone else exposed to the violation of his basic rights. Accordingly, many effective measures have been adopted in the process of criminal procedure particularly for the observation and protection of privacy and respecting the personal secrets of individuals which in the present essay have been enumerated and assayed in view of their jurisprudential foundations.

The Right of People with Disabilities to Health: What Is Expressed by the Architectonics of Legislation?

The article formulates the research problem: what ideas dominate in architectonics of two laws under scientific analysis (The Human Right to Health of the World Health Organization, Article 12, and parts of the Law on the Health System of the Republic of Lithuania related to the situation of people with disabilities in the healthcare system)? The research methodology is grounded on the ideas of postpositivism and ethnographic approach. The thematic analysis has been chosen as a method of data processing. The findings allow formulating a conclusion that architectonics of legislations of the World Health Organization has a clear jurisprudential foundation; whereas the Law on the Health System of the Republic of Lithuania provides preconditions for various stipulations, which results in people with disabilities facing manifestations of discrimination in Lithuanian system of health care.

Semi-Liberty System Investigation in Iranian and French Law

The semi-liberty system was first established in French law and accepted in Iranian criminal law before Islamic Revolution Laws. In 2013, it was proposed in Islamic Penal Code with regard to detention policies and reducing the number of criminal cases. The semi-liberty system is one of the borderline penalties and it is moderate for crimes considered. In this case, the perpetrators are reformed in these crimes and they demand corrective actions based on middle legal sanctions. The mentioned item is one of the manifestation principles of individualizing punishment. The gradual progress of the convicted person is included in its working schedule. It has agreed with his/her liberty. This system gives an identity to criminal people to avoid him from labeling. It also gives job and family stability for convinced. It is matched to criminal justice response based on criminal status. And finally, it reduces the criminal costs. The purpose of the execution of punishments is reforming the criminal person. The jurisprudential foundations are not in conflict with the implementation of punishments with regard to demanding of the criminal person reforming and reducing the harmful effects of imprisonment on convicted person, his family and society. The privative liberty is minimized based on international documents. They develop liberties before the deadline and items including the mid-liberties. Finally, this item tries to create at least distance between the community and the convinced person and obtain the most benefit for society with regard to implementing this system. This study investigates the system of semi-liberation in Iranian criminal policy and French law.

(Re) Configuring ‘Alternative Dispute Resolution’ as ‘Appropriate Dispute Resolution’: Some Wayside Reflections

The discourse on alternative dispute resolution systems has been characterised by two misconceptions that this paper will seek to unpack; Mischaracterization of ADR as alternative, and the failure by its supporters and critics to give it a jurisprudential foundation. In the absence of a jurisprudential foundation and proper characterization, ADR has been mistaken to be an ad hoc and secondary means of resolving conflict whenever parties find the courts to be inappropriate, expensive, cumbersome or unable to arrive at a proper outcome in a legal dispute. However as will be demonstrated in later sections of this paper, what is christened as ADR is actually the normal and mainstream response to disputes .In fact in some instances, courts resort to ADR when they realize that the dispute at hand has underlying socio-cultural and psychological factors that are outside the domain of law. For conceptual clarity, this article excludes all court sanctioned forms of ADR such as court annexed mediation and arbitration. To this end it is anchored upon informal forms of ADR such as mediation, conciliation negotiation and traditional justice systems.

Why judges need jurisprudence in cyberspace

AbstractJudges are increasingly asked to decide whether a rule of national law is applicable to a cyberspace actor who is not present in their jurisdiction, or whose activities do not clearly fall within the established understanding of the rule. They do this through interpreting the applicability and meaning of the law.Every attempt to enforce a national law makes a claim that the law has authority over the cyberspace actor. By accepting that claim, the judge asserts that the law's claim is legitimate. This is a Hartian exercise, adopting the internal view of the national legal system as the test for legitimacy.But in cyberspace the legitimacy of a national law claim is determined not by the internal perspective of the legal system but by the external perspective of cyberspace actors. A law will only have authority in cyberspace if it can convince cyberspace actors that its claim is legitimate. And a legal system which repeatedly makes illegitimate claims thereby weakens its status as a system which adheres to the rule of law.Judges can help solve this problem by interpreting laws and applying public and private international law so as to reject applicability claims which are illegitimate. To do this successfully, they need to understand the jurisprudential foundations of any law's authority in cyberspace.

The jurisprudential foundations of Iran’s criminal policy concerning the spread of prostitution covered in the 2013 Penal Code

The legislator has acted to criminalize the field of public chastity in order to preserve public morality; one of these cases considers prostitution. Publication of some news and images, especially those that may appear today in various mass media, such as Internet websites, certainly leads to the dissemination and spread of content that contradicts public morality and ethics, that confronts ethical norms and values. That’s why the publication of such information is prohibited by law. Concerning the spread of prostitution, this paper analyzes two instances of abuse, that contradict public morality and are related to each other. The main question in this paper is, what does the Iranian criminal policy do against the spread of prostitution, covered in the Islamic Penal Code approved in 2013? After an introduction (Chapter I), we analyze some jurisprudential concepts and principles related with this matter (Chapter II). In Chapter III we see some examples of the spread of prostitution in domestic law. Finally, we take care of the role of corruption in the spread of prostitution (Chapter IV) and then we resume some conclusions (Chapter V).

Status of Narcotic Drugs in Islamic Jurisprudence and Foundations of Islamic Laws

Narcotic drugs have been a problem for human communities for a long time. The problem has become even worse since its use has become broad and people can provide it manually and by industrial equipment. Regarding the depth of its teachings, Islam has focused its main attention on human and his/her well-being both in this and the other worlds. Islam has acknowledged and valued wisdom more than any other schools of thoughts and has never admitted inflicting harm on such a precious gold, including the harmful effects of the narcotic drugs that influences on the wisdom and psych of humans; therefore, Islam has seriously antagonized and prohibited this act and it has been certainly known as a forbidden act by the Islam. This article studied jurisprudential and legal foundations of prohibition of narcotic drugs, which are included in cases Islam has prohibited. All the following concepts approve the above claims and the authors of this article have studied them: Unjust enrichment, avoiding from unclearness and wickedness, abstaining from any evil acts and narcotic drugs use as a leader of all evil deeds, and destroying oneself. Furthermore, expanding, extending and presenting the foundation of the prohibition of narcotic drugs can help authorities with their mission in campaigning against such an evil phenomenon. The authorities will be able to prioritize fighting against drugs, and finally eradicate them with peace of mind and easefully with accessing to legitimate authorization and religious orders based on the prohibition of the narcotic drugs in Islam.

Mosaic Theory and Cyberharassment: Using Privacy Principles to Clarify the Law of Digital Harms and Free Speech

The Supreme Court of the United States, in the 2012 case United States v. Jones, laid a jurisprudential foundation for using mosaic theory to identify and address harms caused when innocuous bits of information are aggregated and used to invade the privacy of a targeted individual. Although mosaic theory has been applied almost exclusively in Fourth Amendment privacy cases, information mosaics can be used to facilitate online harassment. However, courts have not articulated frameworks for recognizing informational harms caused by mosaics. Additionally, although state cyberharassment laws exempt constitutionally protected informational uses from prosecution, neither state legislatures nor courts have articulated the extent of such protected activities in the cyberharassment context. Mosaic theory provides a useful theoretical and heuristic lens for understanding the limits of informational uses and harms in the cyberharassment context. Using the lens of mosaic theory, this article explores the ways information mosaics can be used to harass targeted individuals. The article concludes that states should pursue incremental modifications to their cyberharassment laws to address the harms caused by persistent, intentional, targeted uses of information mosaics against targets and that they better articulate frameworks for understanding which information-sharing activities are exempt from prosecution.

Relevancia del incumplimiento contractual como habilitante de la acción resolutoria: aplicación en el sistema jurídico ecuatoriano

Con el objeto de analizar el incumplimiento contractual como habilitante de la acción resolutoria, este trabajo se estructurará de la siguiente manera: en primer lugar, expondremos los conceptos generales del incumplimiento contractual y de la condición resolutoria tácita como habilitante de la acción resolutoria. En segundo lugar, analizaremos las diferentes corrientes doctrinarias conducentes a determinar la esencialidad del incumplimiento contractual y cuándo este permite el ejercicio de la acción resolutoria. A continuación, estudiaremos los diferentes instrumentos internacionales que regulan el incumplimiento esencial, así como el amplio tratamiento jurisprudencial al respecto. Esto con la finalidad de determinar qué corrientes han sido recogidas por dichos instrumentos y cuál ha sido la fundamentación de la jurisprudencia para hacerlo. Así, finalmente, pretenderemos encontrar soluciones al problema jurídico planteado para, de esta manera, proponer aquella que esperamos pueda tener una eventual aplicación práctica en el sistema jurídico ecuatoriano.