Jurisprudential Framework Research Articles

Alumbrando el principio de lo mejor: derecho natural, necesidad moral y justicia divina en el joven Leibniz (1663-1671)

El joven Leibniz abordó, primeramente, la cuestión de la justicia divina desde un enfoque iusnaturalista, basándose en la doctrina de los entes morales de Erhard Weigel. De tal doctrina tomó el concepto de necesidad moral, que emplea en este período (1663-1671) para definir la noción de obligación. Sin embargo, este enfoque jurisprudencial le resulta inadecuado para explicar la justicia divina, porque Leibniz entiende que Dios está exento de toda obligación jurídico-moral. Por ello, busca en la doctrina de la armonía universal una razón que pueda explicar la equidad o piedad divina. Y esta búsqueda parece conducirlo a esbozar, hacia 1671, el principio de lo mejor, como principio que rige las acciones divinas, basado en una concepción intelectualista de la libertad.

Reflection of Maqāṣid al-Sharī'ah in the classical Fiqh al-Awqāf

PurposeThis paper aims to analyse the Sharī'ah premises of classical waqf doctrines followed by critically analysing the framework of waqf jurisprudence (fiqh al-awqāf) from a Maqāṣid al-Sharī'ah (the higher objectives of Islamic law) perspective. The objective of examining the jurisprudential framework of waqf from a maqāṣid perspective is to contextualise the scope of dynamism and innovation in the modern waqf structure.Design/methodology/approachFor examining the jurisprudential aspects of classical fiqh al-awqāf with a special reference to Maqāṣid al-Sharī'ah, the paper analyses the classical waqf books and treatises from the four Sunni schools of jurisprudence by employing a textual analysis method.FindingsThe paper finds that the key constituents of maqāṣid are interwoven in the classical discourse of waqf rulings. It finds that in deriving the principles of waqf, the jurists ensured that the essentialities of Maqāṣid al-Sharī'ah are subtly intermingled with the necessary components of fiqhī principles. Deconstructing the applied analogical reasoning of the classical jurists in deriving the waqf rulings, this paper provides recommendations for maqāṣid-oriented application of waqf in the modern context.Research limitations/implicationsThis study does not cover either the historical contribution of waqf among the Muslim societies nor does it touch on the empirical aspects of modern waqf. Rather, the focus of the study is limited to analysing the classical jurisprudential rulings of waqf and their distillation process from a Maqāṣid al-Sharī'ah perspective. The study has good implication for modern awqāf, which need to be created, managed and directed in the spirit of Maqāṣid al-Sharī'ah.Practical implicationsThe key objective of adopting the maqāṣid framework for the analysis of fiqh al-awqāf in its classical permutations is to learn how to utilise the maqāṣid approach as a baseline for the deduction of new waqf rulings in a contextualised term.Originality/valueThe novelty of the paper lies in its examination of the classical waqf rulings distillation process, and the cogent intersection of Maqāṣid al-Sharī'ah with the principles of fiqh. By delving into the Sharī'ah premises of classical waqf jurisprudence through the lens of maqāṣid, the paper adds an original value and fills an existing gap in the available literature.

Complicit but legitimately compliant

Summary In his very thorough analysis of the normative impact of legal directives on the morality of actions of medical professionals, Kenneth Ehrenberg portrays in a jurisprudentially elaborate way the legal limits of pursuing compossible ends in the domain of medical professional action. In some cases, Ehrenberg argues, compliance with a legitimate legal requirement and compliance with one's best medical judgment, are not practically compossible and complicity with a legitimate legal directive would be morally justified where the non-medical considerations upon which the directive was based are ones that would themselves undermine the physician's pre-existing moral duty to treat the patient. In this brief response, I will outline the jurisprudential framework within which Ehrenberg's argument operates followed by a short digression in the broader domain of discourse regarding the instrumentality of action. More precisely, I will confine my remarks to certain parameters that I take to be critical in ensuring that a Razian model of legal authority hits its desired target unembarrassed by rejoinders originating from theories of law that similarly aspire to inject teleological arguments in the justification of political legitimacy and the normativity of law.

Right and Law: The Necessary Dualism

The article is devoted to the analysis of the relationship between right and law. The author identifies four types of understanding of right: positivist, natural-legal, general social, and the point of view of educational literature. These four types belong to different paradigms of understanding: the philosophical one (theory of natural right) and the legal one (three other points of view). The philosophy of right as a purely philosophical and not a legal discipline uses a philosophical approach to the substantiation of the essence of right. Its fundamental thesis: it is impossible to prove the claims of the right to general validity and obligation if we use the framework of jurisprudence only. In this regard, the statist positivism is subjected to sharp criticism as a theory that rejects the essential difference between right and law and identifies right and law with the activities of the state alone. In philosophy, the right is understood as a system of values that includes fundamental moral and legal ideas and principles. The difference between right and law, their necessary dualism lies in the difference in their genetic nature. The right consists mainly of values that are inherently regulative, whereas the law is a set of norms that have a constitutive essence. This distinction between values and norms and, therefore, between the regulative as such and the constitutive is precisely the philosophical basis for the distinction between right and law. The essence of the regulative as such is based on ontological attitudes of consciousness, which are a priori in their origin. The article concludes with a classification of the functions of right with regard to law.

¿Camino al altar?: El matrimonio igualitario en el Derecho Internacional de los Derechos Humanos

Este texto plantea que, en las dos últimas décadas, el Derecho Internacional de los Derechos Humanos ha sido un freno para el reconocimiento del matrimonio igualitario en el plano supranacional. Para el autor, los casos sobre la materia resueltos por instancias como el Comité de Derechos Humanos, la Comisión Interamericana de Derechos Humanos o el Tribunal Europeo de Derechos Humanos, habrían sido presentados por miembros del colectivo LGBTI en momentos poco estratégicos, lo que ha generado un entramado jurisprudencial negativo que sólo recién podría empezar a revertirse.

Trauma-Informed: Dependency Court Personnel’s Understanding of Trauma and Perceptions of Court Policies, Practices, and Environment

The law and legal processes can affect the psychological and emotional well-being of the people involved. Individuals who are already traumatized can experience stress which triggers prior trauma through court policies, practices, and environment during involvement with the child abuse and neglect court system. However, some courts use trauma-informed policies, practices, and environments which are based on the notion of therapeutic jurisprudence. The purpose of this analysis was to determine if dependency court personnel in larger jurisdictions have differing understandings of trauma, and differing perceptions of court policies, practices, and environment than their counterparts from smaller jurisdictions. Results indicate that smaller jurisdiction personnel have a higher understanding of trauma, as well as perceive themselves to be more trauma-informed in the areas of policy, practice, and environment when compared to larger jurisdiction personnel. Implications are discussed and recommendations from a therapeutic jurisprudence framework are suggested.

Rights, Regulation and Bureaucratic Impact: The Impact of Human Rights Litigation on the Regulation of Informal Trade in Johannesburg

In contemplating the extent to which rights-based litigation is conducive to positive social change, attention ought to be paid to the bureaucratic impact of court judgments that vindicate rights against the State. As a case study of such impact, this article considers the effects of human rights litigation on the regulation of informal trade in the City of Johannesburg, where a 2013 attempt by local government to clamp down on informal trade in the central business district (CBD) led to high-profile court action. After describing and problematising the City's general approach to managing informal trade, the article focuses on "Operation Clean Sweep", which aimed to rid much of the CBD of informal traders and became the focal point of rights-based resistance. It then briefly describes the constitutional and jurisprudential framework within which the legal challenge to "Operation Clean Sweep" was to be decided, before critically discussing the judgment of the Constitutional Court in South African Informal Traders Forum v City of Johannesburg 2014 4 SA 371 (CC), which effectively halted "Operation Clean Sweep" by interdicting the City from removing traders from their places of business. The article then proceeds to consider the aftermath of the judgment, and assesses its impact on the City's informal trade policy and urban management practices, as well as on the broader regulatory and political environment around street trade in South African cities. The article shows that the bureaucratic impact of the judgment has, at best, been mixed, and that the judgment has not been entirely successful in disrupting the legal and bureaucratic mindsets, frameworks and processes that simultaneously create, exacerbate and unsuccessfully attempt to address the "unmanageability" of street trade in Johannesburg.
 

The Expansion and Fragmentation of Minor Offense Justice

This article claims that minor offense processes in the common law and the civil law, as examined through two prototypical exemplars of England and Vietnam, have been converging at a more rapid pace and in a reverse trend compared to the convergence in the mainstream, serious crime processes. Because of the notion of nonseriousness, a natural convergence between the two systems in minor offenses is more obvious and less challenging than the convergence in the process for serious crimes. It is commonplace that the goals of regulation, prevention, and efficiency have predominated over the ideal of adversarialism, even in an adversarial system like England’s. This natural convergence is accompanied by a due-process-evading justice, in which criminal fair trial rights could be disproportionately limited by ideas of triviality and the so-called noncriminal character. The article also suggests a convergence in the jurisprudential framework as minor offense justice reflects limitations on fair trial rights in dealing with less serious public wrongs.

Feminist Jurisprudence, the Australian Legal System and Intimate Partner Sexual Violence: Fiction over Fact

In this paper we briefly focus on intimate partner sexual violence (IPSV) and the Australian legal response, using recent Court judgements and Heather Wishik’s feminist jurisprudence framework for inquiry to guide investigation. The key questions being asked are: (1) What have been and what are now all women’s experiences of IPSV addressed by the substance and process of rape law? (2) What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? (3) What is the area of mismatch, distortion or denial created by the differences between women’s life experiences of IPSV coercion and the law’s assumptions or imposed structures? (4) What patriarchal interests are served by the mismatch? The paper concludes with consideration of the limitations and benefits of law reform by reflecting on the findings of the paper.

Analysis of Criminal Content Censorship (Filtering) from a Jurisprudential Framework

پالایش محتوای مجرمانه (فیلترینگ) موضوع مهمی است که با هزینه کلانی در جمهوری اسلامی ایران در حال اجراست و تعیین مصادیق آن طبق قانون جرائم رایانه‌ای به کمیته‌ای در دادستانی کل کشور واگذار شده است. بحث در زمینة کارآمدی یا ناکارآمدی این شیوۀ دفاعی در مقابله با تهاجم فرهنگی و حفظ منافع سیاسی و اقتصادی کشور از جنبه‌های مختلف مطرح است. در این مقاله سعی شده است از دیدگاه فقهی و بر مبنای اصول کلی مستخرج از قرآن، روایات و دیدگاه‌های فقهای عظام در برخی زمینه‌های سنتی مرتبط با آن، ابتدا سیاست‌های کلی دین مبین اسلام در عرصه‌های چهارگانه اخلاق، دین، سیاست و اقتصاد در دنیای واقعی استخراج گردد. سپس، سیاست‌های کلی در عرصۀ مشترک دفاع از این حوزه‌های چهارگانه به دست آید و در نهایت، این سیاست­ها در فضای مجازی تبیین گردد و در خاتمه با توجه به اینکه پالایش جزئی از نظام دفاعی کشور محسوب می‌گردد، سیاست‌های کلی مشترک عرصۀ دفاع بر دنیای مجازی تطبیق داده شود و مبتنی بر آن سیاست کلان کشور در خصوص اعمال پالایش نقد و بررسی گردد.

Therapeutic Jurisprudence as a Needed Framework for a Behavioral Health Integrated Criminal Justice System

Increasingly, psychologists and other mental health professionals are working with the court order and offender populations in the human service and the criminal justice systems as a result of the deinstitutionalization of the mentally ill. A therapeutic jurisprudence (TJ) framework is offered as and integrative paradigm, which aims to serve the best interests of the community, while nevertheless limiting the overly punitive and unmerited aspects of offender treatment. A therapeutic jurisprudence framework requires a legal system informed by the research of psychology and integration of the mental health practice system with the criminal justice system. This paper calls for a broader adoption of the TJ approach across the criminal justice systems.

THE PLACE OF FORCE IN GENERAL JURISPRUDENCE

ABSTRACTThis essay reviews Frederick Schauer's book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer's criticism on that score is sound. His analysis of the role coercion can play in accomplishing law's moral tasks is also welcome and important. Nevertheless, Schauer's jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of Law’s strong critique of contemporary positivism and the incompleteness of its own method make an indirect case for the classical tradition of theorizing that understands law in light of its moral purposes.

Comment on “A New Jurisprudential Framework for Jurisdiction”

Dan Svantesson has introduced an important proposal to reformulate the way we allocate jurisdiction in the international community. Rather than asking whether a proposed assertion of jurisdiction falls into one of the canonical principles identified in the Harvard Research Draft Convention on Jurisdiction with Respect to Crime of 1935, Svantesson proposes to subject claims of jurisdiction to three “core” principles: (1) whether there is a substantial connection between the matter and the State seeking to exercise jurisdiction; (2) whether the State seeking to exercise jurisdiction has a legitimate interest in the matter; and (3) whether the claim of jurisdiction is reasonable given the balance between the state’s interests and other interests that might be asserted. He sees the first two of these as being implicit in the Harvard Draft paradigm, and the third a helpful addition to resolve conflicts in an increasingly interdependent world.

An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on “A New Jurisprudential Framework for Jurisdiction”

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

A New Jurisprudential Framework for Jurisdiction: Beyond the Harvard Draft

Eighty years ago, in 1935, a major step was taken in international law; the Harvard Research Draft Convention on Jurisdiction with Respect to Crime (“Harvard Draft”) was published in the American Journal of International Law. The influence of the Harvard Draft has been nothing but phenomenal and must surely have exceeded the drafters’ wildest ambitions. Indeed, it is fair to say that the structure put forward in the Harvard Draft has represented public international law’s approach to jurisdiction ever since.

Introduction to Symposium: Rethinking State Jurisdiction in the Internet Era

Early debates about jurisdiction and the Internet turned on the problem of identifying where online activities take place. However, the greater problem of territorial jurisdiction may now be that online activities often touch a number of states that can all claim jurisdiction, leading to conflicts. In an ongoing search warrant case between the U.S. government and Microsoft Corporation, the U.S. government asserts the right to demand the e-mails of anyone in the world from any e-mail provider headquartered within U.S. borders, whereas Microsoft counters that its server with the e-mails in question is located in Ireland where the emails are protected by Irish and European privacy laws. The Department of Justice, which is seeking the e-mails as part of a drug-trafficking investigation, argues that there is no issue of extraterritoriality because Microsoft has control over the data from the United States.1 In the view of Internet scholar Dan Svantesson, these sorts of problems should not be dealt with by tinkering with the concept of territory. Instead, they should spur international lawyers to revisit the basics of jurisdiction. AJIL Unbound presents an essay by Svantesson proposing a new jurisprudential framework for jurisdiction, going “Beyond the Harvard Draft” as he puts it.2 This reference to the venerable Harvard Research Draft Convention on Jurisdiction with Respect to Crime, published in AJIL in 1935, illustrates his ambition in proposing to move definitively away from territoriality as the dominant principle in jurisdiction. Svantesson argues for a new framework focused on three core principles—asking whether the potential regulator has a substantial connection to the transaction, has a legitimate state interest, and whether the exercise is reasonable when balanced against other interests. He asserts that these principles extend the policy interest underlying the traditional approach, in which territoriality was simply a proxy for such core concerns. As pointed out in comments by Cedric Ryngaert and Horatia Muir Watt, the proposal may be less novel than it first appears. Writing from the “other side of the fence”, as she puts it, Muir Watt notes that these balancing concerns have long been at the center of debates in private international law.3 She considers what a true reconceptualization of jurisdiction might look like. Similarly, Ryngaert also notes that the proposal has the character

A Private (International) Law Perspective Comment on “A New Jurisprudential Framework for Jurisdiction”

What follows is a private international lawyer’s response to the thought-provoking ideas put forward by Professor Svantesson on international jurisdiction from a criminal law perspective. This stance may in itself seem (and certainly feels!) paradoxical, since much contemporary academic effort (my own included) has been directed towards a rejection of the public/private distinction in international law. This rejection has been championed both as a normative matter, because so much would be gained from reaching ‘beyond the schism” to overcome the personality split from which the discipline has suffered for over a century, as well as a descriptive matter, since multiple issues, debates, myths and concepts straddle the divide, even if they give rise to specific disciplinary understandings on either side. Both of these observations apply to jurisdiction in all the forms mentioned by Professor Svantesson. Moreover, the need for an intradisciplinary conversation is particularly acute in respect of international limits on criminal jurisdiction, which, as Professor Svantesson’s paper seems to demonstrate, fall somewhere in-between the public and the private models (perhaps seen as logically public, but considered private in France!).

Metaética de la Corte Suprema de Justicia de la Nación Argentina en la jurisprudencia de la dosis personal

El presente artículo tiene como finalidad determinar que las decisiones de las supremas cortes, sin importar la latitud, dependen del sistema filosófico del operador jurídico. Esta idea supera la concepción de que el sistema normativo determina el resultado jurídico y aspira consolidar la idea de que el operador jurídico toma una decisión de política jurídica. El marco jurisprudencial argentino no es más que una excusa, pues, en estricto sentido, si se hace un análisis metaético a cualquier corte suprema tendremos como resultado la discrecionalidad judicial.

A Call for Change: A Contextual-Configurative Analysis of Florida's 'Stand Your Ground' Laws

Florida’s Stand Your Ground has stood center stage since the tragic killing of Trayvon Martin. On the one hand, certain sectors of society are calling for its repeal, and on the other, proponents vigorously defended its value and efficacy. Despite the public outcry for reform, every attempt to repeal or change the law has been defeated. This Article examines whether Florida’s Stand Your Ground law is inconsistent with commonly-held societal values, and if so, what might prompt a change in the law. To that end, this Article relies on the jurisprudential framework established by Myres S. McDougal and Harold D. Laswell which identifies the law as an expression of community interests and a source of authority rooted in community values. The common interests, or values, identified by McDougal and Laswell are power, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. This Article examines these values in the context of Florida’s Stand Your Ground laws and analyzing them from competing perspectives to conclude the law is inconsistent with commonly-held community values. This Article concludes by exposing the legislature’s reticence to repeal the statute as a reflection of its entrenched mode of thinking. It calls for opposition voices to collaborate in advancing reform messages aimed at deconstructing the entrenched categories and restructuring them to prompt an amendment to or repeal of Florida’s Stand Your Ground statutory scheme.

The Scope of Regulatory Authority Under the Second Amendment

This paper will appear as a chapter in a forthcoming book to be published by the Johns Hopkins University Press that analyzes the efficacy of firearms regulation. In this paper, the authors analyze the emerging jurisprudential framework for assessing the validity of firearms regulation under the Second Amendment to the United States Constitution. This emerging framework, the authors contend, preserves substantial regulatory authority for federal, state, and local governments. The authors then assess the constitutionality of the leading proposals for regulatory reform that have emerged in the wake of the tragic events at Sandy Hook Elementary School in Newtown, Connecticut.