Anti-Discrimination Rules and Religious Minorities in the Workplace

2020 ◽  
Author(s):  
Katayoun Alidadi
Keyword(s):  
Social Life ◽  
Social Inequalities ◽  
Case Law ◽  
Shop Floor ◽  
Religious Minorities ◽  
Legal Norms ◽  
Legal Rules ◽  
Judicial Decisions ◽  
Indirect Discrimination ◽  
The Subject

Human rights and anti-discrimination law address social inequalities faced by religious minorities in today’s societies, including their discrimination in the workplace. Legal rules are necessarily abstract, separated from current realities of vulnerable minorities. Abstract rules do not speak for themselves (what does the prohibition of ‘indirect discrimination’ really mean?), but require interpretation, and since much is at stake they become the subject of continuous contestations over meanings. Judicial decisions mediate between the abstract and the concrete, and create ‘semi-abstract’ norms; decisions interpret and apply the abstract norms in the law on the books, but are in turn themselves the subject of (re)interpretation in the legal, social, and political realm. Thus, the specific and serendipitous facts and circumstances of particular workplace disputes provide the material for constructing meaningful understandings of legal norms. These interpretations are not neutral, but are, rather, products of judicial policy.To illustrate the importance of taking stock of judicial decisions and their role in moving abstract legal norms towards the ‘shop floor of social life’, this chapter uses as case studies two European anti-discrimination cases – Achbita and Bougnaoui (2017) – involving female Muslim employees seeking to wear a headscarf in the workplace. A holistic law and society viewpoint should engage deeply with judicial decisions that interpret and apply abstract anti-discrimination norms. Developments in case law thus merit not only the close attention of legal scholars but of legal anthropologists as well, as the latter are interested in the percolation of enacted norms on the ground.

scholarly journals Cyber Attacks, Information Attacks, and Postmodern Warfare

2017 ◽  
Vol 10 (1) ◽  
pp. 63-89 ◽  
Author(s):  
Jozef Valuch ◽  
Tomáš Gábriš ◽  
Ondrej Hamuľák
Keyword(s):  
International Law ◽  
Subject Matter ◽  
Case Law ◽  
Cyber Attacks ◽  
Armed Conflicts ◽  
Information Warfare ◽  
Law Of War ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship

Abstract The aim of this paper is to evaluate and differentiate between the phenomena of cyberwarfare and information warfare, as manifestations of what we perceive as postmodern warfare. We describe and analyse the current examples of the use the postmodern warfare and the reactions of states and international bodies to these phenomena. The subject matter of this paper is the relationship between new types of postmodern conflicts and the law of armed conflicts (law of war). Based on ICJ case law, it is clear that under current legal rules of international law of war, cyber attacks as well as information attacks (often performed in the cyberspace as well) can only be perceived as “war” if executed in addition to classical kinetic warfare, which is often not the case. In most cases perceived “only” as a non-linear warfare (postmodern conflict), this practice nevertheless must be condemned as conduct contrary to the principles of international law and (possibly) a crime under national laws, unless this type of conduct will be recognized by the international community as a “war” proper, in its new, postmodern sense.

The issues of counteracting with resurgence of crimes: past and present trends

2019 ◽  
pp. 49-60
Author(s):  
Николай Алексеевич Коломытцев
Keyword(s):  
Case Law ◽  
Recidivism Rates ◽  
Legal Rules ◽  
Law Enforcement Officials ◽  
Crime Detection ◽  
The Subject ◽  
Judicial Errors ◽  
High Level ◽  
Detention Facilities

Наличие значительного уровня рецидива в стране напрямую связано с весьма низкой (до 47 %) раскрываемостью преступлений. Кроме того, высокий уровень рецидива преступлений свидетельствует о том, что применяемое к осужденным уголовное наказание в виде лишения свободы не всегда оказывает на них должное воспитательное и принудительное воздействие. Эта ситуация обусловлена недостатками деятельности администрации учреждений уголовно-исполнительной системы. Пробелы в законодательстве, ошибки в избрании судом вида и срока наказания сказываются на его эффективности. Рост рецидива преступлений связан и с неблагополучной жизненной ситуацией, в которой часто оказываются освобожденные от отбывания наказания. Все сказанное убедительно подтверждает актуальность и научную новизну данной работы. Целью написания данной статьи является попытка определения комплексной реализации борьбы с рецидивом преступлений. Предмет изучения рецидива преступлений определяется важностью существующих ценностей, причиняемым им ущербом и общественным резонансом в отношении этого явления. Методологическую основу работу составил метод познания, общенаучные и частнонаучные методы изучения. При этом использовались труды отечественных и зарубежных правоведов. В статье автор рассматривает историко-правовой, криминологический, уголовно-правовой и уголовно-исполнительный аспекты рецидива преступлений, анализирует законодательство и судебную практику за длительное время. Приводится понятие указанного социально-правового явления, предлагаются определенные направления его предупреждения. Статья представляет интерес для курсантов, слушателей, студентов юридических вузов, преподавателей и сотрудников правоохранительных органов. The high level of relapse in our country depends on the low crime detection rate (less than 47 %). In this context, ineffective penalization measures for offenders in prison can have an impact on recidivism rates. This fact revealed serious deficiencies in the administration of detention facilities. Gaps in legislation, judicial errors in the sentencing proceeds, incorrect type of punishment and penalty negatively affect the itseffectiveness. Difficult circumstances for discharged prisoners might cause the growth of resurgence. Thus, this article devoted to the topical and innovative issue. The aim of this article is to combat and prevent criminal activities in the area of resurgence. The subject matter of recidivism is determinated by the importance of social values, the harm inflicted, and public outcry provoked with this phenomenon. A methodological framework for this research includes the cognition method, common and private methods. The author used native and foreign scholarly writings. The author researches a historical and legal, criminological, criminal and penal reviews of relapse. He analysis legal rules and case law over a long term. “Resurgence of crimes” is defined. Some means of relapse prevention are supposed. The article might be meaningful for the students and tutors of law faculties, and also for the law enforcement officials.

scholarly journals MISTAKEN IDENTITY OF THE VICTIM IN CRIMINAL LAW

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Shannon Hoctor
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Legal Rules ◽  
South Africans ◽  
Mistaken Identity ◽  
Legal Perspective ◽  
Legal Position ◽  
The Subject ◽  
Point Of Departure ◽  
Dolus Eventualis

Along with the drama and pathos that the trial of Oscar Pistorius brought to a multitude of South Africans, who devotedly followed the events (and dissections of events) with great dedication a few years ago, the case also highlighted and publicized a number of legal rules and doctrines. Who would have thought, for example, that the term of art dolus eventualis would emerge as the subject of such quizzical interest for so many?Other issues which emerged are no less interesting from a legal perspective, but are admittedly of much more narrow and parochial interest, being limited to those who are required to apply substantive criminal law, whether in the courts or in the classroom. One of these is the error in obiecto notion (the spelling “obiecto”, rather than “objecto” which more typically appears in the textbooks and the case law, is more correct, although, both spelling forms will be used below, as needs be). The word “notion” is carefully selected, since describing error in obiecto as a rule, has been firmly and correctly dismissed as incorrect by Snyman (Hoctor Snyman’s Criminal Law 7ed (2020) 171): “[It] is not the description of a legal rule; it merely describes a certain type of factual situation.” Burchell’s point of departure is even more stark: “[T]he so-called error in objecto rule has uncertain, dubious origins and reference to it, even as a description of a factual predicament, should be excluded from the lawyers’ lexicon”. Phelps uses the phrase “little-known principle” to describe this “factual predicament”. The author in Kemp, Walker, Palmer, Baqwa, Gevers, Leslie and Steynberg Criminal Law in South Africa 3ed (2018) 263 does not use any nomenclature when discussing the legal position arising out of this factual situation.

scholarly journals The peculiarities of exclusion of property necessary for professional activity of an insolvent individual from the bankruptcy estate

2021 ◽  
pp. 50-62
Author(s):  
Viktor Aleksandrovich Sharonov
Keyword(s):  
Russian Federation ◽  
Case Law ◽  
Professional Activity ◽  
Bankruptcy Law ◽  
Legal Norms ◽  
Procedure Code ◽  
The Supreme Court ◽  
Bankruptcy Procedure ◽  
The Subject ◽  
The Russian Federation

The subject of this research is the legal norms on the procedure for excluding the property necessary for debtor’s professional activity from the bankruptcy estate. The article covers the question on the possibility of excluding property necessary for the debtor to conduct professional activity, the value of which is 10,000 rubles or higher, from the bankruptcy estate. The goal of this works consists in consideration of a broader interpretation of provisions of the Paragraph 5 of the Part 1 of the Article 446 of the Civil Procedure Code of the Russian Federation jointly with clarifications of the Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 25, 2018 No. 48 “On Certain Questions related to the Peculiarities of Formation and Distribution of the Bankruptcy Estate in Cases of Bankruptcy of Citizens” applicable to property of the debtor within the framework of insolvency (bankruptcy) procedure. The author analyzes the relevant civil legislation and insolvency (bankruptcy) law, as well as case law on topic. This article is one of the first attempts to systematize the relevant case law on the subject of exclusion of property necessary for debtor to conduct professional activity from the bankruptcy estate. Based on the results of analysis of the case law, national civil legislation and insolvency (bankruptcy)l law, the conclusion is made on impossibility of exclusion of property used by the debtor for professional activity, the value of which exceeds 10,000 rubles, from the bankruptcy estate in view of the failure of the economic model used by the citizen to ensure a normal life. The author questions the need to extend executive privilege onto the debtor’s property, which is required to conduct professional activity under the insolvency (bankruptcy) law.

scholarly journals Transfer of Ownership of Forests in the Western and Northern Teritories after World War II: Nationalization and Reprivatization

2018 ◽  
Vol 36 (1) ◽  
pp. 125-141
Author(s):  
Joanna Jaroszyk-Pawlukiewicz
Keyword(s):  
World War Ii ◽  
Subject Matter ◽  
Case Law ◽  
World War ◽  
Legal Norms ◽  
The Subject ◽  
Property Acquisition

Summary The article concerns the transfer of ownership of forest property, nationalized after World War II. It covers the subject matter of the process of property acquisition by way of nationalization decrees, in particular in the area of the so-called Regained Territories and dilemmas related to the issue of reprivatization. The work includes issues proposed over the years and existing statutory solutions, as well as case law affecting the interpretation of legal norms.

scholarly journals THE PRECAUTIONARY PRINCIPLE IN THE BRAZILIAN ENVIRONMENTAL LAW

2016 ◽  
Vol 13 (27) ◽  
pp. 63-88
Author(s):  
Paulo de Bessa Antunes
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Case Law ◽  
Operational Definition ◽  
Legal Rules ◽  
The Precautionary Principle ◽  
Legal Principle ◽  
The Subject ◽  
Definition Of ◽  
Scholarly Production

The problem to be addressed in this article is related to the precautionary principle and its incorporation into the Brazilian law. As it is beknown, this principle has been widely cited by Brazilian case law and it is an important part of the legal and environmental scholarly production. However, it follows that its application has been made fairly randomly, and even so there is no clear and operational definition of its content. The hypothesis being examined is that since the Rio Declaration’s - in its translation into Portuguese - environmental legislation has termed as legal principle, which internationally is an approach, a precautionary measure, as can be seen in both the texts in English and French of the Rio Declaration and other relevant legal instruments. The methodology to be used is the research of the case law and relevant legal rules, as well as the examination of the scholarly production on the subject. As a result, the conclusion is that there is an overuse of the precautionary principle by the Brazilian courts, especially by the Superior Court of Justice and that, in this case, the Federal Supreme Court has played a moderating role in relation to the application of the precautionary principle.

scholarly journals DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

2011 ◽  
Author(s):  
Justin Leach
Keyword(s):  
International Law ◽  
South African ◽  
Case Law ◽  
Private International Law ◽  
Current Case ◽  
Choice Of Law ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

scholarly journals The pragmalinguistic analysis of legislative genre (based on texts of german laws)

2021 ◽  
Vol 30 (2) ◽  
pp. 101-108
Author(s):  
Elena Yu. Balashova ◽  
◽  
Olga V. Nagoga ◽  
Elena A. Makshantseva ◽  
◽  
...  
Keyword(s):  
Research Direction ◽  
Case Law ◽  
Interdisciplinary Studies ◽  
Legal Norms ◽  
Language Functions ◽  
Judicial Decisions ◽  
Pragmatic Analysis ◽  
Law Texts ◽  
The Given ◽  
Special Language

As a rule, legal genres are subdivided into three large thematic groups: “Legislation” (laws, regulations, instructions, acts, orders), “Case law” (judicial decisions, appeals, protocols, court orders and court inquiries), “Official documentation” (official correspondence, reports, contracts). This research focuses on the pragmalinguistic and linguo-stylistic analysis of German legislative texts. The authors describe the characteristics of legislative genres and single out their general and special language functions. The relevance of the article is based on the fact that in Russia and abroad there are few linguistic papers on the analysis of legislative genre and law texts. In the meantime, the given research direction is highly prospective for interdisciplinary studies. The authors argue that the function of nomination, the function of message, the function of influence and the function of communication are vividly manifested in legislative genre via multilevel language means. A pragmatic analysis of the legal norms of the German legislative texts shows that the latter are characterized by imperative and dispositive legal norms, while recommendatory legal norms for the texts of German laws are less typical. The methodological base of research includes contextual and functional analysis, linguo-stylistic techniques as well as descriptive and linguo-pragmatic methods of analysis.

scholarly journals Practical and theoretical problems of legal regulation of surrogacy

2021 ◽  
pp. 1-12
Author(s):  
Yana Ivanovna Suprun ◽  
Anastasiya Maksimovna Kozlova
Keyword(s):  
Social Relations ◽  
Legal Status ◽  
Case Law ◽  
Legal Regulation ◽  
Surrogate Mother ◽  
Legal Norms ◽  
The Social ◽  
Legal Nature ◽  
The Subject ◽  
Genetic Parents

The subject of this research is the legal norms applied to the surrogacy program as an independent institution that requires a separate place in the system. The object of this research is the social relations arising in the sphere of surrogacy procedures for future parents, as well as protection of the rights of a child born from artificial insemination. Special attention is given to such aspects as the surrogacy contract, registration of a child born to a surrogate mother, court opinion on the refusal to register a child born to a surrogate mother, and right of a single father to register a child born to a surrogate mother. The novelty of this article lies the analysis and examination of case law dedicated to the practical and theoretical problems of using surrogacy. The definitions are provided to the concepts of surrogacy and surrogate mother. Recommendations are made on the amendments to family and civil legislation by introducing norms that would regulate and determine the legal nature of surrogacy contract, norms on the child’s registration by the genetic parents who are not legally marries, as well as norms that to regulate the rights and responsibility, legal status of the father of a child born to a surrogate mother.

Response to Intervention and Child Find: A Legally Problematic Intersection?

2018 ◽  
Vol 84 (4) ◽  
pp. 368-383 ◽  
Author(s):  
Perry A. Zirkel
Keyword(s):  
Response To Intervention ◽  
School Districts ◽  
Case Law ◽  
Child Find ◽  
Effective Implementation ◽  
Judicial Decisions ◽  
Professional Discretion ◽  
Reasonable Suspicion ◽  
The Subject ◽  
The Law

This article provides a systematic and impartial analysis of the law, including hearing and review officer as well as judicial decisions, specific to the intersection of response to intervention (RTI) and school districts’ ongoing affirmative obligation of child find. The results reveal that this intersection has not been the subject of particularly frequent adjudication and that the majority of the rulings have been in favor of school districts. At a more nuanced level, however, the analysis suggests that the outcomes of such litigation depend on various factors, including the effective implementation of RTI with overriding attention to the two defining dimensions of child find—reasonable suspicion of eligibility and reasonable period for evaluation. Finally, the applicable legislation, regulations, and case law thus far is relatively limited in the scope and specificity of its prescriptive requirements, leaving ample latitude for prudent professional discretion.

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