Normative Texts Research Articles

A IDEIA DE CONSTITUIÇÃO: UMA PERSPECTIVA OCIDENTAL‐DA ANTIGUIDADE AO SÉCULO XXI

This article defends the thesis on the permanence of the idea of Constitution since the Western Classic Antiquity until current days. It departs from the assumption that the Constitutional essence suffered no substantial modifications since then. It defends then that the Constitutional role is to present a better State organization and the limitation of the power exercise. Then, this is not a legal work, since it does not analyze normative texts, but a political historic work on constitution. It is also a critic to the interpretation about a great disruption on previous constitutional practice and theory during 17th/18th centuries.

Informed consent in international normative texts and biobanking policies

With the progress in bioinformatics, genomics, and epidemiology, biobanks, as repositories of populations’ biological samples as well as of personal and medical information, are becoming an essential research tool. Despite the potential benefits biobanks may bring and the options presented by some of the current biobanks’ consent policies, there remain ethical concerns regarding the autonomy and dignity of research participants if consent is not fully informed as dictated in the terms of traditional informed consent. This article aims at providing an overview of the approaches taken by the main international norms with respect to informed and broad consent and how well these norms are integrated by biobanks or biobank consortia. We conclude that broad consent could be an important tool to achieve the benefits of large-scale biobanks projects. If it is to be accepted, its regulation and implementation need to be mindful of the participant’s dignity and autonomy and sensitive to the need for international coherence and harmonization.

An Evolution of COMI in the European Insolvency Regulation: From Insolvenzimperialismuss to the Recast

The Centre of Main Interests (COMI) is one of the most relevant concepts in the international insolvency scene. It is used as the main criterion to assign jurisdiction in cross border insolvency cases in the vast majority of the European countries, the United States and every state that has incorporated UNCITRAL's Model Law on Cross Border Insolvency (since the recent adoption by Kenya, 41 states across the globe). The concept, as such, was for the first time introduced in a normative text in Europe. This paper analyses the evolution of the concept in the context of the European legal framework. First, its origins are traced with a view to identifying the reasons for its creation and the main policies behind its adoption. Then a general description of the interpretation of COMI in the most important judicial cases is provided. And finally the current state of things, with the recent recast of the European Insolvency Regulation, is assessed. It will be here argued that, despite its faltering inception, the evolution of the COMI has turned it into an adequate criterion to determine jurisdiction in cross border insolvency cases, and that, looking forward, an interpretation that is respectful with the economic rationale of the concept may help ensure that only positive forum shopping takes place between EU countries.

INTERPRETACIÓN Y CONSTRUCCIÓN JURÍDICA

Este trabajo bosqueja una teoría analítica y realista de la interpretación jurídica. Analítica, en el sentido que su método es el análisis lógico del lenguaje de los juristas. Realista, en el sentido que, por un lado, sostiene que el derecho es indeterminado y, por otro lado, representa la interpretación desarrollada por los jueces como una actividad intrínsecamente discrecional. En la primera parte, se introducen las distinciones fundamentales entre: interpretación “in abstracto” e interpretación “in concreto”; interpretación cognoscitiva, decisoria, y creativa; interpretación en sentido estricto y construcción jurídica. Esta última distinción tiene una importancia especial: la interpretación en sentido estricto consiste en atribuir significado a un texto normativo, mientras que la construcción jurídica consiste (esencialmente) en formular normas nuevas, que se pretenden implícitas en el sistema jurídico. En la segunda parte, se analizan, en su estructura lógica, las más difundidas técnicas argumentativas por las cuales los juristas suelen justificar sus operaciones interpretativas y constructivas.

The “Islamic State” (is) as Proponent of Neo-ahl ḥadīth Manhaj on Gender Related Issues

It is the aim of this article to examine several gender related practices considered religiously normative by the is and deconstruct the religious justifications behind them. In the analysis I include the practices pertaining to the all-pervasive nature of gender segregation, obligatory nature of the face-veil (niqāb) and the institution of concubinage through means of enslavement of ‘pagan’ female war captives. In this context I will argue that from interpretational methodology point of view, the is’ stance on gender under discussion are identical with the neo-ahl ḥadīth approach to interpretation (manhāj) of the Qurʾān and Sunna as advocated by major contemporary Saudi Arabian scholars such as Al-Albānī (d. 1999), A. Bin Bāz (d. 1999), M. Al-ʿUthaymīn (d. 2001), Ṣ. al-Fawzān (b. 1933), M. Ṣ. Al-Munajjid (b. 1960), Ibn Jibrīn (d. 2014) and H.R. Al-Madhkhalī (b. 1931). I also briefly note that in many ways the broader Sunnī traditionalist approach as exemplified in “Open-letter to Baghdādī Document” which aims to refute is interpretation of the normative texts, shares many hermeneutically critical presuppositions, and therefor legal determinations, with that of the neo-ahl ḥadīth in relation to the gender issues under discussion.

IV. Hildegard von Bingen als Lehrerin des Liturgierechts

Abstract Hildegardis Bingensis teaching liturgical law - Relations between documented visions and normative texts in the middle ages. Texts in the context of subjective experiences of visions on the one hand and norms looking for the highest levels of objectivity on the other hand seem to stand in insuperable opposition. Therefore it may be surprising that Hildegardis Bingensis in the eucharistic tract of her work Sci vias not only describes single elements of rites but also the duties of the priests concerning a correct execution of the rites including potential misunderstandings and abuses. The present contribution categorizes this phenomenon in the theological context and reports comparable sources (Otloh Ratisbonensis/Emmeramensis, Elisabeth Schoenaugiensis) dealing with defects of the administration of the mass and juridical instructions of the ecclesiastical discipline. The result is a new sight of the relation between the theology of the liturgy and the discipline of liturgy in the perspective of the developed liturgical law in the high middle ages.

Essentialism or an Anthropological Approach: The Role and Function of the Scientific Study of Religion in a Historical Perspective

The study of religion has its historical origin in the confessional education of religious functionaries, which has influenced the structuring of the study. The order of the topics studied has been, as a rule, first, languages relevant for the study of the normative texts, then the interpretation of these texts, followed by the historical development within the religion, its doctrines (systematic theology), and its practical application (ethics, practical theology). This order of the study is very relevant for priests, pastors, and preachers. It has a certain normative purpose. But it is problematic when the same structure is followed in the empirical study, description, and analysis of how religious tradition is selected and functions in the contemporary, modern, globalized society. A more appropriate structuring is a combination of psychological, sociological, and political approaches, taking into account that religions constitute very changing phenomena, that religious belonging is only one of an individual’s many “identities,” and that religious leaders and their pronouncements are not very representative for the actual functions of religion for the individual, the society, and the political life. The problematic is illustrated by a number of doctoral dissertations from the late twentieth and early twenty-first centuries.

About the Portuguese VIM3 version

For the first time, a unique Portuguese version of the International Vocabulary of Metrology (VIM) was organized and published by the National Metrology Institutes (NMIs) of Portugal and Brazil. This challenge could be met thanks to the experiences of the respective translations of the previous editions of the VIM and to the new Orthographic Agreement (AO) of the Portuguese speaking countries. After a brief historical review of the VIMs and their Portuguese versions, this communication aims to display the main steps that led to the final joint translation. Advantage was taken of this 3rd edition and of the AO to update the Portuguese multiplicative prefix writing "kilo" in coherence with the respective symbol "k". By way of answer to the questions raised by the recent edition of the VIM (VIM3) that stresses on the concepts associated to the terms, some suggestions are proposed and inconsistencies are identified, in order to facilitate the understanding and the dissemination of the document. These few suggestions for the next edition of the VIM also intended to standardize the terminology found in normative texts of different scientific fields which unfortunately does not necessarily tend to be consistent between them.

Les verbes garantir et assurer et leurs équivalents polonais dans le texte constitutionnel contemporain d’un état et dans Gaudium et spes (1965)

The article contains a detailed analysis of the verbs garantir and assurer and their evivalents in Polish gwarantowac, zapewniac i zabezpieczyc extracted from the normative texts, which are national constitutions and the constitution of the Catholic Church. As modal deontological verbs of assurance they are used in specialized texts. The study of the relationship between the type of a constitutional text and the choice of verbs of assurance in the language of the original indicates that both the syntactic structure and the meaning of those verbs are characteristic of a given type of text. The reflection over the choice of those verbs in translated texts leads to the conclusion that it is worthwhile to re-think the use of equivalents in the translated text according to the redaction style appropriate for a given normative text. Detailed illustrations of bilingual contexts of comparable texts as well as of parallel ones also aim at pointing out to computer linguistics specialists certain issues appearing during encoding and which arise from the transformation of whole phrases containing a verb of assurance during the translation process along with the consequences resulting from the choice of the de re or de dicto modality.

Esquisse de classement sémantique et modal des verbes polonais et français en construction avec les syntagmes prépositifs latins dans les textes juridiques

This article encompasses the semantic classification of performative verbs typical for the legal Polish and French languages and found in lexical constructions with Latin syntagmas of the prepositional type. Latinisms, treated as borrowed words, perform an adverbial function in both Polish and French. Their role is essential in communicating the meaning of the illocutionary act. A performative verb is frequently introduced by a deontic verb in legal normative texts, which proves there exists a modal element in a legal normative text.

Linguistic Insights into Legislative Drafting

This article analyses several complex aspects concerning legislative drafting, which derive both from specific legal and linguistic traditions. In particular, the article shows how inaccurately-written texts may lead to confusion and misunderstanding, and as a result to complications, delays and unnecessary expenses in their application. Indeed, the formulation of legal norms is greatly conditioned by specific factors strictly depending on the different cultural, linguistic and legal environments in which it takes place. The article discusses the linguistic and textual features of some normative texts, thus providing interesting insights into how drafting procedures are influenced by different legislative drafting traditions deriving from specific legal cultures and standardised professional procedures. It also demonstrates that variations in the formulation of legal concepts in normative texts are mainly to be attributed to the different cultural traits and legal traditions of the communities for which they are meant. The analysis presented here shows that legislative texts often contain instances of vagueness and ambiguity likely to arouse uncertainty of interpretation on the reader's part. The presence of vague textual formulations is due to several reasons: normative texts aim to be as all-inclusive as possible in order to be valid in the widest range of applications; moreover, in many cases the text is worded in a vague way so as to allow more freedom to the parties involved. The last section of the article reviews some suggestions and guidelines for better legislative drafting that have been suggested in the last decades with the purpose of achieving a greater degree of clarity and consistency, and these have proved very influential in introducing important innovations in law-making with a consequent improvement of the quality of legislation.

Global Governance and “New Governance Theory”: Lessons from Business and Human Rights

ON 16 JUNE 2011, THE UN HUMAN RIGHTS COUNCIL UNANIMOUSLY ENDORSED the Guiding Principles on Business and Human Rights that I developed over the course of the previous six years in my role as the Secretary-General's special representative for business and human rights. (1) The journey involved nearly fifty international consultations on five continents, numerous site visits to individual firms and local communities, extensive research, and pilot projects to road test key proposals. For the council and its institutional predecessor, the Commission on Human Rights, the endorsement was unprecedented. It was the first time that the UN adopted a set of standards on the subject of business and human rights; and it remains the only time the commission or council endorsed a normative text on any subject that governments did not negotiate themselves. Moreover, the uptake of the Guiding Principles (GPs) by other standard-setting bodies, national and international, has been swift and widespread, as has their use as a policy template by companies and business associations as well as an advocacy tool by nongovernmental organizations (NGOs) and workers' organizations. (2) I have told the story of how this came about in my book, Just Business: Multinational Corporations and Human Rights. (3) Here, I want to relate it to recent conceptual debates in the study of global governance, which I loosely term new governance theory. (4) Governance, at whatever level of social organization it occurs, refers to the systems of authoritative norms, rules, institutions, and practices by means of which any collectivity, from the local to the global, manages its common affairs. Global governance is generally defined as an instance of governance in the absence of government. There is no government at the global level. But there is governance, of variable effectiveness. However, the recent literature has identified a secular trend: an already weak system of global governance apparently becoming more so. Global governance architectures, legal and institutional, are said to be fragmenting. (5) Traditional forms of international legalization and negotiation through universal consensus-based institutions are stagnating. (6) Regime complexes that often embody divergent norms dominate previously coherent rule systems. (7) The decline of the West and the rise of the rest add to the centrifugal pull, not only in material terms but also in animating visions. (8) There may be individual instances of network governance, multilevel governance, private governance, multistakeholder initiatives, and even experimentalist governance. (9) But the ideal solution of comprehensive and integrated regimes, Robert 0. Keohane and David G. Victor contend in the context of climate change, is increasingly unattainable and they urge making the best of this situation. (10) Few would argue that the picture is much different in other policy domains characterized by substantial problem diversity, conflicting interests, and uncertainty regarding risks, gains, and losses--which, of course, describes many of the most serious problems on the global governance agenda. And yet as has been said about Wagner's music, the situation may not be as bad as it sounds. I undertook the strategic construction of the Guiding Principles aware of the (powerful) systemic constraints and (modest) opportunities identified in this literature, to which I have contributed on occasion. (11) Indeed, in my UN reports, I described business and human rights as a microcosm of a larger crisis in contemporary governance: the widening gaps between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. The GPs are far from constituting a comprehensive and integrated global regime. But they do demonstrate that it is possible to achieve a significant degree of convergence of norms, policies, and practices even in a highly controversial issue area. …

The Decryption of Law as an Exact Normative Science Using Fractals

In order to be studied as a science, Law had to transit an intense process of specialization and consecration of values, values becoming thereby its object of study and specific research.Throughout time, Law has been studied from various perspectives, because of its variable geometry, being considered in continuous transformation, with a social dynamics in ascension.Most specialists agree that Law is a complex phenomenon, with a synergistic, well-defined structure, which cannot be summarized in the exegesis of some legal norms or normative texts and precedents. Therefore we ask ourselves whether the Theory of Fractals can argue the law’s character of being an exact science and implicitly natural on the one hand and, on the other hand, its nature of normative science.

I. Normative Schriftlichkeit im früheren Mittelalter: das benediktinische Mönchtum

Article I. Normative Schriftlichkeit im früheren Mittelalter: das benediktinische Mönchtum was published on August 1, 2014 in the journal Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung (volume 100, issue 1).

Specification and Verification of Normative Texts Using C-O Diagrams

C-O diagrams have been introduced as a means to have a more visual representation of normative texts and electronic contracts, where it is possible to represent the obligations, permissions and prohibitions of the different signatories, as well as the penalties resulting from non-fulfillment of their obligations and prohibitions. In such diagrams we are also able to represent absolute and relative timing constraints. In this paper we present a formal semantics for C-O diagrams based on timed automata extended with information regarding the satisfaction and violation of clauses in order to represent different deontic modalities. As a proof of concept, we apply our approach to two different case studies, where the method presented here has successfully identified problems in the specification.

Community Leadership and the Construction of Political Legitimacy: Unpacking Bourdieu's ‘Political Capital’ in Post‐Apartheid Johannesburg

AbstractApart from local monographs and normative texts on community participation, research on community leadership constitutes a blind spot in urban leadership, urban politics, social movements and urban studies. This article, based on case studies in post‐apartheid Johannesburg, contributes to theorizing community leadership, or informal local political leadership, by exploring Bourdieu's concepts of ‘political capital’ and ‘double dealings’. Considering community leaders as brokers between local residents and various institutions (in South Africa, the state and the party), we examine how leaders construct their political legitimacy, both towards ‘the bottom’ (building and maintaining their constituencies), and towards ‘the top’ (seeking and sustaining recognition from fractions of the party and the state). These legitimation processes are often in tension, pulling community leaders in contradictory directions, usefully understood under Bourdieu's concept of ‘double dealings’. Community leaders are required, more than formally elected political leaders, to constantly reassert their legitimacy in multiple local public arenas due to the informal nature of their mandate and the high level of political competition between them — with destructive consequences for local polity but also the potential for increased accountability to their followers. We finally reflect on the relevance of this theoretical framework, inspired by Bourdieu, beyond South African urban politics.

A dimension of private life in Wallachia: violence between parents and children (1830–1860)

Violence was present and had different forms in every family during nineteenth-century Wallachia, either rich or poor, in rural or urban areas. Remaining in the shadow, almost never discussed between its members or even in public, this social act shocked the penal courts when it reached a critical point. But, during the century, violence between parents and children knew a constant evolution, visible in normative texts and in any written evidence left behind by the contemporaries. Thus, violence became a dynamic element in defining childhood and parent–child relationships.

Life and Health: Bonhoeffer’s Normative and Divergent Accounts of Private Confession of Sin

This article highlights the critical distinction between Bonhoeffer’s theology of private confession of sin set forth in the collection of working papers from 1940–45, with that found in his other writings. I compare and contrast Bonhoeffer’s “normative account” of private confession with several distinctive aspects of his treatment of the theme in the essay, “The Best Physician,” and other remarks on confession from the same period. In these papers Bonhoeffer restated—albeit in attenuated form—some key points made in his other works on confession of sin and then, departing from his usual christological and ontological depiction, introduced a psychosomatic element not found in his other writings. I argue that the differences do not of necessity constitute a shift in his thinking, but in essence express a common perspective: Christ draws close to the weak. The apparent differences between the texts reflect more the context in which the papers were written than a change in Bonhoeffer’s position. Both the normative and divergent texts emphasize the high priority Bonhoeffer afforded private confession and give insight into the role this concept played in his ecclesiology and theological anthropology.

Legal Liturgies: The Aesthetic Foundation of Positive Law

To the contemporary jurist it may seem quite nonsensical to describe law as a not-exclusively textual but also iconic phenomenon. The idea that there is some form of ``normativity of the image'' relevant to the theory of law would certainly appear unfounded. The difference between the rational normativity of the text and the mythical irrationality of the image and the symbol appears however to be clearly set out in the difference between Kelsens's and Schmitt's theories. The paper proposes an aesthetic of law intended to recompose the unity of the problem of law, placing it anthropologically between the rational and the irrational, between the normative text and the symbolic mythology of its basis, reconstructing the common root of these two theories in Hobbes' thought. Following the formulation of the legal canonist and philosopher Pierre Legendre, law is not a rational systema iuris composed only of rationally interpretable norms, but also and always a corpus iuris wrapped in images, symbols and myths, and which upholds the norm aesthetically and dogmatically, makes it presentable, credible and anthropologically communicable, and considers the ``legal liturgies'' as an aesthetic foundation of the ``third'' in contemporary theories of law.

Defining Legal Vagueness: A Contradiction in Terms?

Indeterminacy is an apparently unavoidable aspect of legal language and this paper aims to offer a taxonomical review of concepts related to linguistic and legal indeterminacy, with particular reference to the phenomenon of vagueness. Starting from the consideration that the notion of legal vagueness is itself intrinsically vague and extremely multifaceted, this study describes the main functions of vagueness and its connection with related phenomena such as ambiguity, contestability, and fuzziness. More specifically, the focus is on legislative texts, and illustrative examples are taken from the EU Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment. Vagueness is here seen as an inherent feature of legal language rather than a threat to the rule of law. The paper illustrates the rationales behind different forms of legal and linguistic indeterminacy and, in particular, offers considerations on how vague choices may be exploited to shape normative texts.