Jurisprudential Interpretation Research Articles

Women's Right to Terminate Marriage by Individual Will According to Saudi Family Law

The issue of protecting women's rights has garnered extensive attention from international organizations, particularly the United Nations, through a range of international covenants and agreements, most notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Since the provisions of these declarations and agreements mandate equality between men and women upon the dissolution of marriage and prohibit discrimination against women in ending a marriage, and given that the marriage and divorce system in Islamic societies is religious, based on the sacred texts of Islamic Sharia, Islamic countries have attempted in their national laws to grant women the right to end the marital bond in a manner consistent with international agreements on one hand, and not in conflict with Islamic Sharia on the other. This study highlights the efforts of the Kingdom of Saudi Arabia in supporting women's right to unilaterally terminate a marriage, in line with the provisions of the international agreements to which the Kingdom is a party, while also adhering to the sacred Islamic texts relevant to this context. The Saudi legislator has selected jurisprudential interpretations and explanations of Islamic texts that support this direction, avoiding strict interpretations and opinions on this issue, to balance as much as possible between the provisions of Islamic Sharia and the demands of modernity and development. This has resulted in a means that aims to establish balance upon the dissolution of a marriage. The study concluded that Saudi Arabia has made significant progress in this area, and it can ensure more rights for women by exploring non-strict religious opinions and jurisprudential interpretations.

The Socio-Economic Contribution of Muʾlft qulub and Fi sabilillah Zakat: Contemporary Applications in Sri Lanka

The zakat obligation mandates Muslims with surplus wealth to donate to specific beneficiaries. In Sri Lankan zakat jurisprudence, Muʾlft qulub is narrowly interpreted to include only recent converts to Islam, while Fi sabilillah is limited to warriors fighting for Islam. This interpretation follows the Shafiʿi school of thought, which advises against distributing zakat to non-Muslims or to righteous individuals broadly. This restrictive approach undermines the broader objectives of zakat, such as promoting social justice, reducing poverty, enhancing welfare, ensuring economic stability, and fostering inter- and intra-community relationships. The paper employs a qualitative content analysis methodology alongside a Muslim minority fiqh approach to connect Islamic principles with the socio-economic context of the Sri Lankan Muslim minority. It argues that the classical jurisprudential interpretation is inadequate for addressing the unique challenges of the modern Sri Lankan socio-economic environment. By applying a fiqh of the Muslim minority approach, the paper suggests a moderate expansion of the Muʾlft qulub and Fi sabilillah categories. This expansion would help achieve the broader socio-economic goals of zakat and empower the Muslim community in Sri Lanka.

The impact of the jurisprudential interpretation emanating from the Supreme Court of Justice of the Nation and its application in local courts in Mexico

The jurisdictional decisión when resolving specific cases often exceed the content of the spirit of the law itself. of the law itself. Or, the scope that the legislator intended to give to the law may be limited. to give to it. The Supreme Court of Justice of the Nation, by means of its interprets what should prevail, and such interpretation is mandatory for local courts. such interpretation is mandatory for local courts. This is the case with the judgment in Amparo en Revisión 2666/2020, which resolves the unconstitutionality of the unconstitutionality related to the payment of the reparation of damages resulting from a crime and that crime and which is a right of the victims in criminal proceedings. Now then, justifies its analysis, derived from the fact that this interpretation will be applied in matters resolved on criminal matters resolved in criminal matters in local Courts, since the National Code of Criminalthe National Code of Criminal Procedures is applicable in all the courts of the country.

The transatlantic divide: intermediary liability, free expression, and the limits of trade harmonization

Abstract Amid escalating apprehensions surrounding content regulation, the USA has discreetly integrated provisions reminiscent of its Communications Decency Act Section 230 (CDA 230) into trade agreements, offering broad immunity. This scholarly analysis critically assesses this manoeuvre by juxtaposing such CDA 230-like provisions against the UK’s established legal framework governing online content and freedom of expression. Utilizing a comparative legal methodology, the paper underscores the pronounced differences between the USA and UK stances on intermediary liability for third-party content, moulded by their unique constitutional foundations and jurisprudential interpretations of free speech rights. The insertion of CDA 230-aligned clauses into trade agreements poses a potential threat to the UK’s nuanced equilibrium between safeguarding free speech and upholding other paramount interests, such as privacy and reputation. An scrutiny of UK defamation statutes and content regulation protocols reveals inherent challenges in transplanting CDA 230 provisions into trade contexts. In summation, the paper ardently supports a diversified approach to online content governance and cautions against standardizing intermediary liability laws via trade agreements, especially between nations with divergent foundational beliefs. It fervently endorses a cross-disciplinary discourse involving both trade and legal specialists to ensure the preservation of free expression while concurrently recognizing the intricacies of crafting universally applicable standards for online platforms and content regulation.

The Jurisprudential Interpretation of Imam Al-Baghawi (d. 516 AH) Surat Al-Noor as a Model: A descriptive analytical study

The research aims to highlight the significance of Islamic jurisprudence and the necessity of its consideration by those engaged in the fields of Quranic interpretation and Quranic sciences. Islamic jurisprudence serves as the foundation of worship to Allah, the Almighty. Additionally, the research aims to present the fiqh rulings in an easy and accessible manner, discussing them through the opinions of jurists while weighing and prioritizing them to ensure maximum benefit. The research adopts a descriptive-analytical approach, relying on description, analysis, and classification to reach general results and rulings. One of the key findings of the researcher is that despite Al-Baghawi's association with the Shafi'i school, his interpretation is considered an important juridical reference for the jurisprudence of the Companions and the Successors (may Allah be pleased with them). It is also significant in the Hanafi school, as many of the jurisprudential issues in his interpretation draw from the statements of the Companions and the Successors, as well as the school of opinion. Fiqh-based interpretation is categorized as interpretation by opinion because it is a form of independent legal reasoning within Islamic jurisprudence. Its aim is to comprehend the texts, understand their implications for rulings, and apply them within the framework of rules and principles considered by the jurist.

A Comparative Study of the Right to Choose in the Legal Systems of Afghanistan and Iran with a Focus on Islamic Jurisprudence

The right of choice is not defined in the law; however, it can be stated that when the subject of a transaction is more than one item and at most three items, and the customer has the right to choose one of these items, this choice is recognized as the right of choice. The period for the right of choice is three days, and the holder of the right of choice must select one item among the maximum of three items as the subject of the transaction. The fundamental question is whether the right of choice falls under the category of cases that grant the right of rescission to the opposing party, and what is its position in the legal systems of Iran and Afghanistan?
 The recognition of the position, source, and nature of the inclusion of this right in contracts in the legal system of Afghanistan and its elucidation in the legal system of Iran, considering that this institution has not been explicitly accepted in the legal system of Iran, are the main objectives of this research.
 The findings of this study indicate that there is no explicit textual basis for the right of choice in the Quran and Hadith, and it is solely derived from the jurisprudential interpretations of Hanafi and Maliki scholars. This institution bears many similarities with the recognized institution of conditional obligations in international law. Although the right of choice is not explicitly stipulated in the legal system of Iran, it can be established in contracts under certain conditions using some provisions of the Iranian Civil Code. It appears that the right of choice can be accommodated within contracts by invoking Article 216 of the Civil Code, where the principle of the supremacy of will is well-recognized. This research follows an analytical and descriptive approach and relies on library research and documentary analysis.

A Cross-Country Examination: Administrative Litigation in China and Romania

Background: In this article, we have analysed the way in which the balance between public interest and private interest is achieved in administrative litigation in Romania and China. The research aims to highlight the distinct ways of solving the specific problems of this legal institution by the legislator and capitalise on the positive aspects.Methods: The article uses the historical method of analysing the evolution of administrative litigation in the two countries diachronically and the comparative method that explains the similarities and differences existing at the regulatory level in the two systems. The comparison will be based on the law that regulates administrative litigation in each state and on doctrinal and jurisprudential interpretations. Results and Conclusions: Despite adopting the first administrative litigation law in China in 1989, and Romania in 1990 after the r evolution of 1989 and the return to democracy, both countries have made remarkable progress in the last decades. This progress provides assurance for the protection of fundamental human rights in the adoption of administrative decisions and their subsequent judicial control.

The Harmonizing Perspective of Theoretically Theological (Aqidah)-Based and Realistically Fiqhi-Based in Dealing with Pandemics and Plagues

This research discusses the issue of pandemics in relation to the perceptions and views of Muslim theologians on the issues of evil and agony. Besides, it discusses the cause-effect relationship between infection and pandemics. It investigates how affliction affects humans as short and long-term chastisement as argued by the Mu’tazila, Asha’irah and Sufis on one hand and other Muslim philosophers on the other. The study discusses how such pandemics are addressed by Muslim scholars’ jurisprudential interpretations in line with worship, financial and urban countermeasures. It also discusses some essential medical and spiritual approaches to be used as preventative countermeasures against pandemics. The study concludes that it is “faith” that motivates humans to be patient and that instills in them essential values and principles for happiness and self-satisfaction.

O zdolności odróżniającej symboli kodów QR w prawie znaków towarowych

The contactless new normal dictated by the global pandemic has re-introduced the nearly three-decade-old QR codes as a new standard of conveyance of information. Not only are they now ubiquitous to the general public but also inseparable to social, commercial and bureaucratic life. Recent history has been witnessing plenty of technical and artistic effort to make these normally abstract and unattractive clusters of dark and light quadratic shapes more eye-catching. In commercial terms, this is particularly motivated by the aim of rendering the code symbols a point of attraction as such, thus securing a more engaging customer interaction. Customized QR codes, having often been associated with brand images and commercial identities, are observed to come closer to the proximity of trademark law. However, the ubiquity and the technically necessary format standards of QR symbols tend to root against the primary premise of the trademarks: distinctiveness. This article seeks to answer whether the signs consisting of or incorporating QR symbols could fulfill the distinctiveness requirement within the framework of the EU law. Given the lack of jurisprudential apprehension of the question at hand, the article, first, sets about reasoning a distinctiveness test on the face of the EU trademark law and that of the relatable jurisprudential interpretations. Secondly, it goes on to administer this test on the signs that consist of or incorporate QR symbols. In the latter respect, limited jurisprudential hints from the Member States and the EUIPO practices shall be put in perspective and compounded with the imperatives of substantive law. The article, consequently substantiates that there is no one-fits-all formula to the question at hand and that QR symbols shall not be excluded as trademarks merely because they are essentially standardized.

Livingston et Mignault : voyages civilistes et codificateurs en terres d’Amériques

The opening up to foreign legal systems had a strong impact on the 19th century in North America. Pierre-Basile Mignault, the Canadian, and Edward Livingston, the American, were both active travelers and particularly curious about the French and Anglo-Saxon legal traditions. Livingston, through his participation in the drafting of the Louisiana Civil Code and the drafting of his criminal law project, became the paragon of a method, of the civil law codification model adapted to the common law tradition. Mignault, although perfectly mastering both worlds, became the icon of the defense of the integrity of the civil law system in the exercise of jurisprudential interpretation.

The snakes and ladders of legal participation: litigants in person and the right to a fair trial under Article 6 of the European Convention on Human Rights

AbstractThis article reviews the right to a fair trial under Article 6 of the European Convention on Human Rights for litigants in person (LIPs). LIPs operate in a system that was not designed for them and so challenge the norm of fully represented parties that the system has evolved to expect, creating potential risks for their Article 6 rights. The jurisprudence on Article 6 reveals the centrality of effective participation as a requirement for fulfilling the right to a fair trial. The article views the jurisprudential interpretation against original and significant empirical research data on how LIPs participate in civil and family court processes. It applies a conceptual analysis of legal participation to consider what might constitute effective participation in court proceedings and, through the empirical evidence, categorizes the intellectual, practical, emotional, and attitudinal barriers that LIPs face in their legal proceedings, which can constitute risks to their rights under Article 6.

The Legal Regime of the Decisions of University Ethics Commissions in the Current Jurisprudential Interpretation

In The legal liability for violating the norms of good conduct in the research activity specific to the university norm, respectively the responsibility in case of violation of the norms regarding the ethics and deontology of the teaching profession, are forms of legal liability of teachers 1/2011. Considering the employment relationship of the teaching staff, contractual relationship in the exercise of a public education service, and the special prerogatives of the University Ethics Commission, as regulated by the legal regime of this institutional body of research and decision in art.306 Law no. 1/2011, corroborated with the solutions of the courts of the last decade in the litigations having as object the contestation of the decisions of the university ethics commission, appears as necessary the substantive analysis of the legal regime of the decisions of the university ethics commission for the correct identification of the legislator's will. This study starts from the legal text by referring to the solutions of the courts, using a method of comparative research of the considerations of the sentences and the text of the normative act.

The Hart-Fuller Debate on Law and Morality Within the Prism of the Legal Foundation of the Right to Privacy in its Earlier Jurisprudential Interpretations in German Case-Law

The 1950s debate between the British and American legal philosophers, Lon Fuller and Herbert Hart, has been a clash between the positivist and natural theories of origination of law and jurisprudence, with the former method primarily suggesting that law and morality are not necessarily interconnected, though may coincide in some occurrences, while the latter sticks to development of law that is based upon the mores and values related to human nature, which creates the standards that society should follow in order to function properly. The former approach, as it is argued, is not actually deprived of moral factors. To examine how these debates could work on practice, I decided to choose the early developments of the general right to privacy as an example of “penumbral” rights and to review the positions of various courts within adjudicating cases in respect with the general right to privacy.

Gondolatok az „Ius Puniendi” definíciójáról a jogelméletben

In my paper I deal with the jurisprudential interpretation of ius puniendi by providing a historical overview of theories concerning this notion in a time span of almost 6000 years until it became a state monopoly and the humanization of criminal law. The interpretation of ius puniendi as the legal ground of punishment is based on different principles in different ages. The jurisprudential interpretation becomes less relevant with the birth of the legal state, when ius puniendi is a state monopoly. Nowadays the meaning of ius puniendi has been modified and broadened with new, different elements, since the principle of opportunity plays a more decisive role in the criminal law systems of modern states. In my study I interpret and examine ius puniendi unlike the classical authors of criminal law, i.e. a notion referring to the legal ground of punishment, but in its original meaning, i.e. the right of punishment, because of its modern function. With my work my aim is to answer the question whether the dogmatically elaborated category of ius puniendi has to be incorporated into the substantive and procedural jurisprudence of the 21st century.

El derecho a la libertad de expresión de las mujeres en espacios universitarios. El caso de la Facultad de Derecho de la Universidad de Buenos Aires

In this article we analyze the situation of women in academic spaces, and how its reduced participation can be understood as a structural violation of their right to free speech. As a case study, we analyze a survey on the number of women who participated in academic activities in recent years and a survey on gender representation in teaching and senior positions in the University of Buenos Aires Law School. We hold that the understanding of this situation as aproblem of equality as non-submission leads to the acknowledgement of the structural violation of women’s right to free speech as a group. This, in turn, damages the practice of democracy in these university spaces, given the significant loss of voices in the public debate. To do that, we review the Supreme Court of Argentina’s jurisprudential interpretations concerning free speech, equality, and democracy, as well as the most relevant Interamerican Court of Human Rights’ cases.

Hidden Constructs of Sexual Victimization of Men and Boys in Armed Conflict: Prosecutorial and Jurisdictional Trajectories of the International Criminal Courts and Tribunals

During armed conflict, sexual violence against women regularly takes on different forms than against the male gender. Frequently, men and boys are attacked either by coercion to witness sexual violence committed against their family and community members, or to rape and sexually assault others. The shared feature of both forms of such victimization is that they rarely constitute an attack on the individual alone. Instead, they are utilized by perpetrators as a war tactic to debase entire communities. Protection for male victims of these forms of sexual violence is limited due to a disconnect between formal statutory provisions under International Criminal Law (ICL) criminalizing sexual violence and the jurisprudential interpretation thereof. The jurisprudence of the international criminal courts and tribunals has been widely criticized in academic literature for misclassifying sexual harm against men and accommodating it incoherently under various provisions other than the explicit sexual violence norms. The prosecutorial and jurisprudential dichotomy partly originates in the lack of clarity surrounding these selected forms of sexual violence. In light of their devastating impact on men and boys, this article aims to map the inconsistencies within and between selected international criminal courts and tribunals and prompts to rethink current international criminal jurisprudence to coherently address and condemn such forms of sexual violence.

The New Insider Trading

Pursuant to the SEC’s Rule 10b-5, in order to obtain a conviction for insider trading based upon a tipper-tippee theory, the government must prove that the tipper received a personal benefit for the tip, and that the tippee knew about that benefit. The last five years of blockbuster insider trading cases have focused on this seemingly nebulous personal benefit test, and the Supreme Court has been unable to clear the muddy waters. As a result, the parameters of insider trading remain hard to pin down, and often shift depending on the facts of the most recent case. Two terms ago, the Supreme Court, in an unsurprising unanimous decision in Salman v. United States, reaffirmed the holding of Dirks, from which the personal benefit test arose. The Court in Salman, however, failed to elucidate the more problematic areas of insider trading, including the application of the personal benefit test if the tippee is not a trading relative or friend. Legal practitioners, legislators, and academics have offered up various solutions for the problem of having an amorphous law against insider trading, yet none have succeeded. This Article suggests that the hubbub over defining the personal benefit element of insider trading — sure to reach a fever pitch the next time a cert petition on the issue is granted — may be misguided. This is because there may be a simpler way to bring an insider trading case. Since Sarbanes-Oxley, there has been a sleepy provision of the criminal code that could present an end-around to the morass of insider trading precedents under Rule 10b-5. Under 18 U.S.C. §1348, the government can bring an insider trading case under the more general umbrella of securities fraud, which has scant jurisprudential precedent. In other words, the heavily-litigated personal benefit test found in Dirks may not apply to a charge of insider trading under §1348. The elements required to prove a charge under §1348 are similar to other fraud-based offenses such as mail and wire fraud, health care fraud, and bank fraud. Whether §1348 was intended to apply to insider trading in particular is an open question, and a broader question is whether the jurisprudential interpretation for the elements of the crime of insider trading as defined under Rule 10b-5 should be imported into the judicial interpretation of § 1348. In other words, if the conduct that constitutes criminal insider trading under Rule 10b-5 exists only if the elements of the Dirks test are met, then a §1348 charge for criminal insider trading may create an entirely new scheme and definition of the crime. This Article analyzes the potential of this dual paradigm, and argues that, given the uncertainty and shifting parameters of insider trading prohibitions, application of §1348 to insider trading should be afforded the rule of lenity.

La atenuación del principio de Ejecutividad del Acto Administrativo en la Ley Federal de Procedimiento

Este texto presenta una postura interpretativa de los efectos suspensivos (lo que modifica la concepción clásica de la ejecutividad inmediata del acto administrativo) del recurso de revisión previsto por la Ley Federal de Procedimiento Administrativo. Se analiza el concepto de la ejecutividad del acto administrativo a la luz de su regulación, de la doctrina y de la interpretación jurisprudencial en la materia, así como las consecuencias, en favor del administrado como lo son el traslado de la carga argumentativa a la autoridad administrativa y la posibilidad de obtener medidas cautelares en sede judicial para impedir la ejecución del acto administrativo.

A propósito de la penúltima modificación de la Ley del Patrimonio Sindical Acumulado en España

<p>En la configuración del patrimonio de los sindicatos en España juegan un papel determinante la cesión de uso de los bienes del patrimonio sindical acumulado y la restitución o compensación económica de los bienes incautados a los sindicatos con motivo de la Guerra Civil –patrimonio sindical histórico–. Su regulación, la aplicación por parte del Gobierno y la interpretación jurisprudencial desde hace más de 30 años, aún no han cerrado todas las cuestiones.</p>

Fuentes del Derecho Internacional Privado en el Sistema Jurídico Argentino: jerarquía normativa y su interpretación jurisprudencial.

El presente documento analiza, dentro de las fuentes del Derecho Internacional Privado Argentino, la jerarquía normativa adoptada por la Constitución y por el nuevo Código Civil y Comercial vigente desde agosto de 2015 y la influencia del Derecho Internacional de los Derechos Humanos. La metodología utilizada se basó en la comparación de ambas normativas a fin de determinar coincidencias y en la interpretación jurisprudencial realizada por el máximo tribunal argentino, su evolución y actuales tendencias. Este trabajo se compone de tres partes: la primera identifica los principios fundamentales del Código Civil y Comercial que impactan en Derecho Internacional Privado Argentino, la segunda, contiene una breve descripción de los diversos sistemas jurídicos y en la tercera se analizan los artículos que abordan la temática y su interpretación jurisprudencial hasta la fecha. Finalmente se concluye en la adopción de un nuevo Derecho Internacional Privado Argentino postmoderno, pro homine, que indica a los jueces argentinos que, al resolver una relación jurídica iusprivatista internacional, vale decir aquella que pone en contacto varios ordenamiento jurídicos nacionales, deben dictar sentencia teniendo en cuenta los derechos humanos.