Legal Deliberations Research Articles

Navigating uncertainty and negotiating trust in judicial deliberations.

Autonomy and independence are key features of legal decision-making. Yet, decision-making in court is fundamentally interactional and collective, both during the information gathering phase of hearings, and in evaluations during deliberations. Depending on legal system and type of court, deliberations can include different constellations of lay judges, jurors, or judge panels. In this article, we explore the collective dynamic of knowledge acquisition in legal decision-making, by analysing their emotional undercurrents. We show how judges balance uncertainty and certainty in legal deliberation, elaborating on (1) trust; (2) uncertainty exchange, and; (3) certainty as an agile emotion. Theoretically, the article combines an emotive-cognitive judicial framework, which understands emotion and reason as intersecting and continuous, with social interactionist theory. The analysis builds on extensive ethnographic fieldwork in Sweden, including shadowing and interviews with judges as well as observations during court proceedings and deliberations. The article actualizes the joint accomplishment of legal independence, and contributes with a nuanced account of how the decision-making process unfolds in legal deliberations.

Artificial intelligence and real decisions: predictive systems and generative AI vs. emotive-cognitive legal deliberations.

The use of artificial intelligence in law represents one of the biggest challenges across different legal systems. Supporters of predictive systems believe that decisionmaking could be more efficient, consistent and predictable by using AI. European legislation and legal scholars, however, identify areas where AI developments are at high risk or too dangerous to be used in judicial proceedings. In this article, we contribute to this debate by problematizing predictive systems based on previous judgments and the growing use of Generative AI in judicial proceedings. Through illustrations from real criminal cases in Italian courts and prosecution offices, we show misalignments between the functions of AI systems and the essential features of legal decision-making and identify possible legitimate usages. We argue that current predictive systems and Generative AI crunch the complexity of judicial proceedings, the dynamics of fact-finding and legal encoding. They reduce the delivery of justice to statistical connections between data or metadata, cutting off the emotive-cognitive process that lies at the core of legal decision-making.

Juridical Review of The Issuance of Ministerial Regulations without Any Delegation from The Law

Ahead of the syncronous Regional Elections (Pilkada) that to be run in November 2024, there is still a polemic related to the legal guidelines for the acting of regional heads’s levitation whose term of office ends ahead of the 2024 simultaneous elections. The legal basis for the Minister of Home Affairs Regulation Number 4 of 2023 concerning Acting Regional Heads issued by the Minister of Home Affairs is considered to have many irregularities. This paper reveal the absence of statutory delegation in the issuance of the Permendagri and the use of legal considerations of the Constitutional Court judges in the Constitutional Court Decision Number 15/PUU-XX/2022 as a consideration in the Permendagri. The research method used in this paper is normative juridical through a statutory approach as a source of existing law. The results of this study conclude that the issuance of Permendagri No. 4 of 2023 is unfounded if only viewed through the presence or absence of delegation of the formation of implementing regulations. If viewed more broadly through the theory of discretion, then this is considered valid, in order to fill the legal vacuum. The legal deliberations of the Constitutional Court judges in MK’s Decision Number 15/PUU-XX/2022 also strengthen the legitimacy of the issuance of Permendagri No. 4 of 2023, this is because the content of the legal considerations is considered to be commensurate with the ruling, even though the ruling was rejected. Unfortunately, the implementing regulation chosen by the government to regulate the inauguration of acting regional heads is in the form of a Minister of Home Affairs Regulation, not a Government Regulation.

The Existence and Development of Compilation of Sharia Economic Law (KHES) and Its Urgency in Resolving Sharia Economic Law Disputes in Indonesia

This research delves into Sharia Economic Law (KHES) as a regulatory framework for resolving Sharia economic disputes in Indonesia, examining its historical, political, and philosophical dimensions alongside its practical urgency. Employing a qualitative literature review, it analyzes secondary data from various sources such as books, journals, and research findings to elucidate KHES's development and its significance in dispute resolution. KHES was established in response to Law No. 3 of 2006, which expanded the jurisdiction of Religious Courts in Sharia economic matters. It harmonizes diverse scholarly opinions from traditional sources like fiqh texts and fatwas issued by DSN-MUI, providing a legal compass for Muslim economic activities. Despite not being formally ranked within Indonesia's legislative hierarchy, KHES, born out of PERMA No. 2 of 2008, serves as a key legal reference for Religious Court judgments and informs legal deliberations on Sharia economic issues. Efforts are underway to potentially elevate its status to that of Government Regulations, ensuring its broader enforceability within the Indonesian legal system.

Discrepancy in the legislative regulations governing the education of advocates in Indonesia

This paper aims to describe the legal confusion that arose after the Minister of Research and Technology of Higher Education Regulation No. 5 of 2019 on the Advocate Professional Program was passed. One of the clauses in this regulation has stipulated that the Advocate Education Program is organized by a tertiary institution that has the accreditation value “B” and collaborates with advocate organizations while the Constitutional Court Decision stipulates that Advocate Professional Special Education is organized by Advocate Organizations in collaboration with tertiary institutions that have the accreditation value “B”. In addition, the factors that cause the legal confusion and how it affects the advocate education after disharmony are also the focus of this article. To reveal the various legal perceptions related to this theme, the author uses a qualitative method with a juridical normative approach. The data and information can be had by data of library and the several articles related to up-to-date themes in Indonesia. The conclusion in the article is the first that the legal chaos toccursed was caused by the factor of sectoral ego, law making factor, the weakness Legal education, and the accountability of Advocate Education Financing. second, the implementation of the advocate education had not yet has the formulation and standards, both for the Ministry of Research, Technology and Higher Education that it is all legal education in tertiary institutions and for the various advocate organizations.To anticipate the four issues that have been discussed, it is deemed necessary to conduct legal deliberations in providing win-win solutions

The Victimised Body: Sexual Violence, Incapacity, and the Materialisation of Unconscious Bodies in Rape Verdicts

This article considers the relationship between body and crime, particularly the body of the victim and the crime of sexual violence. Most studies have focused on the relationship between the body of the perpetrator and the crime they have committed, in particular how forensic technologies have contributed to materialise the ‘criminal body’. The body figures in different shapes in the legal system, and the law deploys different knowledges to make sense of it. In this article, I focus on how the victim’s physical body becomes a readable entity that the courts evaluate in legal deliberation regarding incapacitated rape. I show how the courts through commonsensical reasoning add meaning to bodily (in)activity and separate the body from the mind in their interpretation of the victim’s (in)capacity to resist unwanted sexual acts. Incapacity is in this way materialised as a passive and limp body, that is, a dormant or unconscious body.

Geopolitics and genocide: The Gambia vs. Myanmar at the International Court of Justice

At a time of increasing prominence of the workings and judgements of international courts, recent interdisciplinary work has illuminated the deeply uneven ways in which violence is labelled, understood, and acted upon. Attempting to place work in genocide studies in conversation with current geographical scholarship, this paper argues that there are intrinsic spatial qualities to deliberations over whether an act of violence constitutes genocide. Understanding these invocations of space helps explain how accountability for violence is spatially contained, often severing judgement from wider historical or geopolitical contexts. This argument is made through analysis of the build up to, and enactment of, the legal deliberations at the International Court of Justice brought by The Gambia against Myanmar in relation to the expulsion of the Rohingya from Rakhine State, Myanmar. Such investigative work reveals the intrinsically geographical nature of both designations of genocidal acts and the intimate processes of legal deliberation itself.

조선후기 산송(山訟)과 여성의 행위성

Examined in this article are two females, a commoner female named Jeong Jo-ih, and a Madame Lee from a Sa-Daebu(士大夫) house. The legal actions they took are the focus of this article, as their actions reveal female initiatives taken in the so-called “Mountain lawsuits(Sansong, 山訟),” which were the most typical and representative lawsuits that we can find from the Joseon dynasty’s latter half period.BR This female with the name Jeong Jo-ih, whose husband had filed a lawsuit earlier but was waiting for a verdict to be issued, effectively represented her husband in the trial that was being delayed again and again, even by traversing over a 100-ri distance across county borders in order to be physically present in legal deliberations, and living on the road for weeks and even months, clearly demonstrating her active nature. Meanwhile, Madame Lee, who was a widow, joined the family lawsuit when it was becoming quite violent (‘Gyeoksong, 激訟’). In technical terms she was not obligated to join or lead the lawsuit herself(‘Chinso, 親訴’), as it was a suit battling a non-Sajok(士族) figure (such as commoners and lowborns), but she got herself involved nonetheless. Both females’ actions show that they were trying to prevent the lawsuits either filed by or involving their husbands and their houses from being delayed or spinning out of control.BR Interestingly, how they presented their cases and their intentions differed from each other. Jeong Jo-ih made a passionate plea, and argued that her actions were taken as a wife and a daughter-in-law, who should devote oneself to filial piety and fidelity. On the other hand, Madame Lee argued that her actions were out of her sense of obligation to her ancestors(爲先之心), and that she deviated from her role as a female who should follow the lead of her father(as a child), her husband(as a married woman) and her son(as a widow), for the sake of being a filially pious daughter(-in-law) of the family. We can see they were justifying their legal actions with the three fundamental principles of Samgang(三綱), the loyalty between three crucial relationships: parents(father) and children(son), kings and vassals, and husbands and wives, which were expected of the females of the period to observe.BR Their actions and arguments were also seemingly taken from a strategic standpoint, utilizing the voices and activities of the females. Mountain lawsuits were mostly handled by the males, and females were usually excluded from them, but in some cases femininity turned out to be an ironically strong and effective asset.

The Legal Infrastructure for Hybrid Organizations: The Case of Portugal, 1990-2019

In this study we present, measure, and test a theoretical model of how the legal infrastructure for hybrid organizations emerged from the parliamentary system of Portugal over three decades. To develop this model, we begin with an organized anarchy representation, describing the policy process as the confluence of four distinct streams: choice situations, participants, problems, and solutions. We suggest a theoretical distinction between anarchic policy processes, along the lines of the garbage can, where the streams remain relatively independent, and more structured policy processes, where institutional and political orders create more interdependence among the streams. We develop hypotheses that link the observed outcomes of legal deliberations, categorized as oversight, flight, or resolution, with a characterization of the policy process as more anarchic or more structured. Our findings suggest that the process is more structured than anarchic and show that mechanisms related to a dynamic mix of temporal, institutional, and political orders significantly affect legal outcomes. We close with a review of the findings and some implications for institutional theories of regulation and managers and advocates of hybrid organizations.

Complexities of biomedicine, theology and politics in Islamic bioethical deliberation over female genital procedures: a reply to ‘The prosecution of Dawoodi Bohra women’ by Richard Shweder

Professor Richard Shweder’s target article, ‘The prosecution of Dawoodi Bohra women: some reasonable doubts’, lays bare the ways in which political motivations influence moral, ethical and legal deliberations over female genital cutting/circumcision in society. He argues that activist stakeholders deploy a provocative lexicon and biased clinical data in order to silence dissenting views about, and legally restrict the practice of, female genital cutting/circumcision. He suggests that a more balanced approach to discourse and more nuanced data analysis would open up avenues for tolerating religiously motivated female genital procedures carried out among Dawoodi Bohra communities residing in liberal democracies. Building upon his sociocultural analysis, this reply will explore the confluence of biomedical, theological and political considerations influencing contemporary Islamic bioethical discussion over the practice. I use my participation in the 2017–19 Fiqh Council of North America’s deliberations over female genital cutting to explore how (1) biomedical understandings and health outcomes data, (2) theological concerns over scriptural evidence and juridical best practices, and (3) political and social considerations influenced religious evaluation of the practice. I contend that Islamic juridical academies pursuing bioethical deliberation are not (and should not consider themselves to be) engaging in the routine application of scriptural reasoning in order to furnish guidance to a Muslim polity; rather, bioethics questions are necessarily layered with social and political considerations that require focused examination. This added dimensionality underscores the need for Islamic bioethics deliberation to move beyond the dyad of clinicians and jurists, and to include social scientists, public policy experts and other relevant scholars in order to properly conceive of and address the ethical problem space. Moreover, in the case of female genital cutting/circumcision, the bioethics veers towards biopolitics, making multidisciplinary deliberation all the more important in both religious and secular spaces.

The Special Power Concept Of State Attorney General In Preventing The Governmental Product/Service Procurement-Related Crime In Indonesia

The basic duty of RI’s General Attorney in Special Crime Division is to undertake repressive function. In addition, preventive strategy is an action taken to prevent the product/service corruption crime by Civil and State Administration Division of RI’s Attorney General (DATUN). This study aims to analyze the construction of JPN authorization based on RI’s Attorney General Law. The method used in this study was juridical normative one. The result of research shows that the textual meaning with grammatical interpretation related to the attorney’s duty and authority in civil and state administration function based on Article 30 clause (2) of RI’s Attorney General Law in the terms of acting for and on behalf of state or government, the prosecutor in civil and state administration area should have special power. This article mentions firmly the phrase “special power”, but does not mention explicitly the State Attorney General. Nevertheless, the interpretation of special power as mentioned in Article 30 clause (2) of Attorney General Law to be State General Attorney is found in Republic of Indonesia Attorney General’s Regulation. However, in the concept of norm constructed, this authority should be preceded with a demand. The translation of JPN in the context of function provides a legal deliberation that on the one hand the absence of special power of attorney facilitates the role of JPN in the attempt of preventing corruption crime, but on the other hand an inconsistent application of rule occurs.

'An Expansionist Model of Legal Reasoning'

In this paper, I engage with J.J. Moreso’s account of legal reasoning. First, I reconstruct Moreso’s conception of legal deliberation, which I regard as taking a distinctive stance within the contemporary debate in jurisprudence, since it innovatively expands on some of the most sophisticated models of practical reasoning and legal reasoning that have been defended in the literature. Building on this interpretation of Moreso’s theory of legal reasoning, I will go on presenting some reflections on the idea of practical rationality that undergirds the practice of reasoning in law, when this practice is conceived in Moreso’s terms. In this context, I account for two central features of the conception of practical rationality that underlines, and best fits with, Moreso’s explanation of legal reasoning. Since Moreso has yet to systematically explore the idea of practical rationality associated with his theory of legal argument, the claims I advance in this part of the paper are merely tentative. Whilst I try to make a rigorous attempt to develop Moreso’s jurisprudence from a theoretical perspective that is sympathetic to his overall project, nothing in the discussion I carry out here should be taken to suggest that Moreso is conceptually committed to the views about practical rationality I associate his theory of legal reasoning with.

Bohemia by the sea: establishing a Czechoslovak port in Hamburg in the interwar period

ABSTRACT After the First World War, the newly founded Czechoslovak Republic received the right to lease property at the German ports of Hamburg and Stettin, as guaranteed by the Treaty of Versailles in 1919. However, the form, location and legal provisions of these properties were left to be negotiated at a later date. It took 10 years of legal and strategic deliberations before areas at the Hamburg free port were finally leased to the Czechoslovak Republic in 1929 for a period of 99 years. By focusing on the negotiation process for a Czechoslovak port zone in Hamburg, this article traces issues of territoriality, most especially the debates on the cession of sovereign rights in the context of the dominant geopolitical order of nation-states in the interwar period.

End-of-Life Decision Making in Orthodox Judaism: The Case of the 1977 Conjoined Twins

In 1977, conjoined twins were born to an Orthodox Jewish family in Lakewood, New Jersey; they were treated at Children’s Hospital in Philadelphia. Following legal deliberations in the American court system, as well as religious deliberations within the Orthodox Jewish, Protestant, and Catholic communities, the twins were separated by surgeon C. Everett Koop, who later became Surgeon General of the United States. Evaluation of the medical decision making process in the 1977 case illustrates the distinctly legal nature of Orthodox Jewish discourse—a feature that sets it apart from Protestant, Catholic, and secular ethics. This legal character of Orthodoxy had been highlighted a decade earlier, in a report issued by a panel that had been convened to study the different approaches to conjoined twins among Jewish, Protestant, and Catholic authorities. Close examination of that report, and of the circumstances of the 1977 case itself, bring to the fore the legal nature of the Orthodox Jewish procedures determining the medical outcomes of the conjoined twins. The distinctive nature of the Jewish approach is thrown into relief even further by comparison with the differing approaches among Catholic, Protestant, and secular authorities and medical caregivers. Following an elaboration and explication of the report and the 1977 case in which I examine the important contrasts between the adherents to different traditions and legal systems, I explore their broader implications for understanding the cultures of Jewish medicine in an increasingly complex scientific and technological landscape.

Ethical, Legal and Social Issues in Japan on the Determination of Blood Relationship via DNA Testing

DNA paternity testing has recently become more widely available in Japan. The aim of this paper is to examine the issues surrounding (1) the implementing agency, whether the testing is conducted in a commercial direct-to-consumer (DTC) setting or a judicial non-DTC setting, and (2) the implementation conditions and more specifically the legal capacity of the proband (test subject). Literature research in Japanese and English was conducted. Some countries prohibit commercial DNA testing without the consent of the proband or her or his legally authorized representative. But as in some cases, the results of DTC paternity testing have proven to be unreliable. I propose a complete prohibition of DTC DNA paternity testing in Japan. In many cases of paternity testing, the proband is a minor. This has led to debate about whether proxy consent is sufficient for paternity testing or whether additional safeguards (such as a court order) are required. In cases where commercial DNA testing has been conducted and the test results are produced in court as evidence, the court must judge whether or not to admit these results as evidence. Another important issue is whether or not paternity testing should be legally mandated in certain cases. If we come to the conclusion that DNA test results are the only way to conclusively establish a parent-child relationship, then our society may prioritize even more genetic relatedness over other conceptions of a parent-child relationship. This prioritization could adversely affect families created through assisted reproductive technology (ART), especially in situations where children are not aware of their biological parentage. This paper argues for a complete prohibition of DTC DNA paternity testing in Japan, and highlights that broader ethical and legal deliberation on such genetic services is required

The Metaphors of Causation or a Conflict of Concepts in International Criminal Justice

This draft paper addresses the problematic relationship between the concept of causation and the use of tropes, that is, metaphors, metonymies and other figures of speech in international criminal trials and jurisprudence. The use of metaphors, for instance, shows that specific instruments of language can be employed in an inappropriate manner as part of the process of analytical and deliberative reasoning. Based on specific legal requirements, such as those found in speech-related crimes, metaphors used in judgments do not clarify or explain the various forms of causal relations between the evidence and the criminal acts. As a matter of fact, the use of metaphors, as found in judicial records, only indicates an evidentiary and logical vacuum in legal analysis and deliberations. This author demonstrates that the currently available jurisprudence and trial records of the International Military Tribunal (IMT), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Tribunal for the former Yugoslavia (ICTY), all testify to that effect. The analytical models presented in this working paper, based on both theory and practice in international criminal trials, offer a novel step toward an improved, philosophical and pronouncedly cognitive scientific interpretation of the forms of evidence involving the element of causation in primarily speech-related international criminal cases.

Wavelet-based reversible watermarking system for integrity control and authentication in tele-ophthalmological applications

In numerous applications, such as in the areas of law enforcement and medical imaging systems, together with perceptual transparency, it is required to reverse the modified media back to the original without any deformation, after the secret data are regained for some legal deliberations. This paper proposes a completely reversible watermarking system with enhanced imperceptibility, robustness, and capacity for colour medical images which can effectively check the unlawful utilisation of the medical images with no affect to medical information and its visual quality. The proposed algorithm depends on transforming non-overlapping blocks of the host image using wavelet transform and is completely blind. The proposed technique attains high values of peak signal to noise ratio (PSNR) of watermarked image and high values of normalised correlation (NC) of the extracted watermark and recovered original image. State-of-the-art comparison shows that the proposed scheme has advantages over the existing techniques. This scheme may be proficient in providing a broad range of applications that aims at security and privacy protection in the medical field. The scheme can also be helpful for the purpose of identification of fundus images for storage in distributed medical databases and tele-ophthalmological applications.

Pluralismo jurídico, diversidad cultural, identidades, globalización y multiculturalismo : perspectiva desde la ciencia jurídica.

El fenómeno de globalización por medio de las nuevas tecnologías y los medios masivos de comunicación ha impulsado las relaciones de forma más directa entre los ciudadanos y los colectivos, situación que ha determinado un contexto pluralista en términos culturales. De él se desprende el pluralismo jurídico como concepto que explica las múltiples prácticas jurídicas actuales y que, a la vez, se involucran en análisis de deliberaciones de la Ciencia Jurídica como el reconocimiento de la diversidad cultural de los Estados contemporáneos. Este se expresa por medio de pronunciamientos de tribunales constitucionales, las identidades culturales esenciales para configurar la ciudadanía y las críticas al multiculturalismo, que se encuentra más aliado con los intereses del mercado y del consumo que con un reconocimiento real de la diversidad cultural. Estos análisis, deliberaciones y reflexiones serán expuestos en el artículo.

Ebola Scare and Measles Resurgence: Mandatory Isolation/quarantine and Vaccination

Public outcry for radical isolation and quarantine policies followed the first Ebola diagnosis in the United States when Eric Duncan, upon his return home Oct 2014 from West Africa, then in the midst of a catastrophic Ebola epidemic, tested positive for Ebola. Likewise, the Dec 2014 Disneyland measles outbreak unleashed an angry backlash against parents who refused to have their children vaccinated; and there was public momentum to repeal all legal exemptions to mandatory vaccination of school children. This paper presents an ethical and legal analysis to adjudicate the issue which is at stake in both controversies; namely the inherent conflict between individual rights v. public health when the nation is threatened by serious communicable disease. It presents reasoned arguments, weighing duty-based v. consequence-maximizing ethical principles of right action through application of the felicity calculus (net utility). And the paper demonstrates how the metaethical theory of emotivism is operative in formation and expression of public sentiment which fueled the ethical and legal deliberations.

‘The Bedoun’: Kuwaitis without an Identity

The Bedoun (stateless/without nationality) in Kuwait constitute a controversial concurrent social, political and legal issue, which was and still is the subject of heated political debate, a vivid example of social conflict, and a platform of extensive legal deliberation concerning its thorny dimensions. The problem of Bedoun is not only politically and socially complex, but it has its problematic legal dimensions, which have made it, since the 1950s, a complex and chronic problem. The recent growing interest in addressing the issue and the extensive strife to determine its degree of complexity and entanglement could be ascribed to the margin of freedom enjoyed in Kuwait more than the rest of the Arabian Gulf states, since active social and political participation constitute the pillars of the democratic system in Kuwait, in light of the growing political and media freedoms and the focus on the Bedoun as a marginalized community legally, politically and socially. Therefore, the current problem of Bedoun constitutes the strongest internal concern for the Kuwaiti authorities and people after the external threats, especially because it has always been ignored or treated as a security issue at times. This study seeks to shed light on the issue of Bedoun to decipher its causes and its historical development until it became a pressing issue at government and community levels in the State of Kuwait. The study will avoid the complex legal and social complexities of the issue