scholarly journals Criminalizing Rape Within Marriage

2013 ◽  
Vol 20 ◽  
pp. 124-148
Author(s):  
Megha
Keyword(s):  
Legal System ◽  
Legal Discourse ◽  
Married Women ◽  
Equal Treatment ◽  
The Political ◽  
Marital Rape ◽  
Bodily Integrity ◽  
Rape Law ◽  
Substantive Equality ◽  
Indian Law

The paper is an attempt to bring marital rape under the purview of legal discourse in India with substantive equality approach to problematize the existing defined structure of Indian Rape Law. This paper takes up the challenge to create a legal language on the issue of rape within marriage which is till now absent from the legal and social scenario. The equal treatment of women before and under the law within the context of marital rape is critical to ensuring the recognition of women as full citizens, and ensuring their freedom from violence. This paper examines the following questions: how marital rape contributes to and results from women‘s inequality; how the discriminatory roots of the historical- cultural rationales contributes to the exemption of marital rape from the Indian legal system; how the issue of marital rape has been debated in personal-political scenario from the feminist viewpoint; how equality jurisprudence can support the case for the legal treatment of marital rape claims. This paper questions the socio-legal passivity about the suppression of married women; cultivate the knowledge that helps women to generate their own thinking and to apply that in creating the new subjects, to make the women able to express their disagreements about the consent and to make them aware of their active sexuality to provide them bodily integrity. The paper is, thus, an attempt to emphasise the need to transform the prevailing masochistic heterosexual socio- legal matrix. The paper underlines the need to bring the issue of marital rape in the political sphere by bringing this to the purview of Indian law in both formal and substantive manner.

Marital Rape As Domestic Violence

2019 ◽  
pp. 128-170
Author(s):  
Ajita Sharma
Keyword(s):  
Domestic Violence ◽  
Sexual Violence ◽  
Gender Discrimination ◽  
Personal Autonomy ◽  
Health And Safety ◽  
Married Women ◽  
Marital Rape ◽  
Bodily Integrity ◽  
Legal Provisions ◽  
Legal Remedies

Available data indicate that marital rape impacts the health and safety of women in much the same way as rape by a stranger. This chapter argues in favour of recognizing marital rape as a crime in India, by rebutting the forcefully held misconceptions that continue to be put forth as justifications for exempting marital rape as a criminal offence. The institution of marriage as a sanction for sex completely disregards the consent of the wife. This has the effect of condoning acts in the nature of domestic violence and must be recognized as a form of gender discrimination that negates the dignity, personal autonomy, and bodily integrity of married women. Analysis of existing legal provisions on spousal sexual violence under the PWDVA have been analysed to assess the scope of legal remedies available for marital rape.

“I'd make thee eat the mischief thou hast vented”: Discourse of Law in Ben Jonson's Catiline His Conspiracy

2017 ◽  
Vol 24 (1) ◽  
pp. 22-45
Author(s):  
Akihiko Shimizu
Keyword(s):  
Early Modern ◽  
Political Discourse ◽  
Legal Discourse ◽  
The State ◽  
The Political ◽  
State Of Emergency ◽  
Gunpowder Plot ◽  
Effective Use ◽  
Legal Procedures ◽  
The Way

This essay explores the discourse of law that constitutes the controversial apprehension of Cicero's issuing of the ultimate decree of the Senate (senatus consultum ultimum) in Catiline. The play juxtaposes the struggle of Cicero, whose moral character and legitimacy are at stake in regards to the extra-legal uses of espionage, with the supposedly mischievous Catilinarians who appear to observe legal procedures more carefully throughout their plot. To mitigate this ambivalence, the play defends Cicero's actions by depicting the way in which Cicero establishes the rhetoric of public counsel to convince the citizens of his legitimacy in his unprecedented dealing with Catiline. To understand the contemporaneousness of Catiline, I will explore the way the play integrates the early modern discourses of counsel and the legal maxim of ‘better to suffer an inconvenience than mischief,’ suggesting Jonson's subtle sensibility towards King James's legal reformation which aimed to establish and deploy monarchical authority in the state of emergency (such as the Gunpowder Plot of 1605). The play's climactic trial scene highlights the display of the collected evidence, such as hand-written letters and the testimonies obtained through Cicero's spies, the Allbroges, as proof of Catiline's mischievous character. I argue that the tactical negotiating skills of the virtuous and vicious characters rely heavily on the effective use of rhetoric exemplified by both the political discourse of classical Rome and the legal discourse of Tudor and Jacobean England.

Adab Konstitusi; Upaya Meluruskan Kesesatan Pikir Konstitusi

2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Yogi Prasetyo
Keyword(s):  
Legal System ◽  
The Political ◽  
Legal Basis ◽  
Political Interests ◽  
The World

The Constitution as the legal basis for formation of legislation in the system of Indonesia. The misuse of the constitution (UUD 1945) by the political interests of goverment caused mislead and made the situation of the nation getting worse. Liberal capitalistic value wrapped in modern positivistic legal system that puts the ratio had diverge from culture constitution. needs to be clarified with the balance of conscience through culture constitution. Culture constitution is a constitutional concept who saw citizen of Indonesia as creatures of God by virtue of intelligence and unseen. So with that constitution is formed, conceived and executed to be qualified and to bring the benefit of the world and the hereafter.

scholarly journals Los procesos secesionistas y el derecho europeo

2016 ◽  
pp. 347
Author(s):  
Javier Tajadura Tejada
Keyword(s):  
European Union ◽  
Member State ◽  
Legal System ◽  
Constitutional Law ◽  
The Political ◽  
European Law ◽  
The European Union ◽  
European Citizenship ◽  
Regional Authorities

Este artículo analiza en primer lugar el significado de la secesión en el Derecho Internacional y en el Derecho Constitucional. Asimismo, examina cómo se aborda el fenómeno de la secesión en el Derecho comunitario europeo. Esto obliga a estudiar dos tipos de problemas: por un lado, el de la secesión de un Estado miembro respecto de la propia Unión; por otro, el de la fragmentación de un Estado miembro por la secesión de una parte de su territorio. La conclusión es que la conservación o fragmentación de un Estado miembro de la Unión Europea no es un asunto interno: la secesión de partes de un territorio afecta al sistema político europeo en su conjunto, en la medida en que es una forma de integración federal donde no caben actos unilaterales que quebranten el principio de lealtad federal de la Unión y la ciudadanía europea que ha ido conformándose en las últimas décadas.This article analyzes the meaning of secession in international and constitutional law. It also examines the phenomenon of secession in European law. This requires studying two types of problems: the secession of a member state of the European Union and the fragmentation of a Member State for the secession of part of its territory. The conclusion is that conservation or fragmentation of a Member State of the European Union is not an internal matter. In our opinión, the political and legal system of the Union can be characterized also federally, which prevents the national and regional authorities to carry out unilateral acts that go against the principle of Community federal loyalty and European citizenship.

scholarly journals Islam's Attitude towards Democracy Comparative Study in International Human Rights Law

2016 ◽  
Vol 9 (1) ◽  
pp. 73
Author(s):  
Suhail Hussein Al-Fatlawi
Keyword(s):  
Legal System ◽  
Liberal Democracy ◽  
Fifth Century ◽  
The Political ◽  
Islamic State ◽  
International Human Rights Law ◽  
Legislative Authority ◽  
The People ◽  
History Of ◽  
Muslim Scholars

<p>Democracy was established in the Greek cities in the fifth century B.C. It is a liberal western system. In this regard, various Islamic countries applied democracy as a political and legal system where the people elect their representatives in the legislative authority in order to put the legal regulations that organize the human behavior.</p>The research included a brief idea about liberal democracy, its history and objectives, the political and legal system in the Islamic state, the dispute among Muslim scholars on the application of democracy in the Islamic states; some Muslim scholars refuse to apply democracy since the legal system in Islam relies on the Holly Qor'an and the Prophet's speeches, which are a biding regulation for Muslims, while other authors believe that Islam accepts democracy and others think that Islam should have its special democracy that differs from the liberal democracy. This paper discussed the political and legal systems that were applied the Islamic state during the history of Islam. Finally the paper presented the most conclusions and recommendations reached by the researcher.

scholarly journals Review of the Political Direction of National Legal Development Law

2021 ◽  
Vol 9 (2) ◽  
Author(s):  
Achmad Irwan Hamzani ◽  
Kanti Rahayu ◽  
Tani Haryadi ◽  
Nur Khasanah ◽  
Havis Aravik
Keyword(s):  
Legal System ◽  
Legal Consciousness ◽  
The Political ◽  
Philosophical Approach ◽  
Legal Development ◽  
National Legal System ◽  
The Law ◽  
The Impact ◽  
Law Making ◽  
The Ideal

The political direction of the law in Indonesia in the development of national law simplifies legislation. The scope of national legal development is not only through legislation. There is the functionalization of the law that lives in society. The purpose of the research describes the political urgency of law in the development of national law and reviews the political direction of national law development law. This research uses a philosophical approach, namely to examine the law from the ideal side in the form of an idea of the direction of national law politics in the future. The results of this study show that the politics of law is necessary to provide direction in the development of national law. Each country has a legal political direction whose role as the basic policy of state organizers to determine the direction, shape, and content of the law to be established. Legal politics as a strategy of the formation process, as well as the implementation of laws based on the national legal system to achieve the goals and ideals of the state. The political direction of the law in Indonesia in the development of national law simplifies legislation. The scope of the development of the national legal system can be through legislation and functionalization of the living law. The political direction of the law in Indonesia in the development of national law simplifies the process of legislation. The impact will only be a successful legal state in law-making, but weak in law in action. The implication of this study is to expand the political direction of national law which includes the functionalization of the living law. By functionalizing "the living law", the resulting law is rooted in the legal consciousness of society.

scholarly journals Historical and legal discourse in the context of classical and postclassical legal understanding

2021 ◽  
pp. 106-111
Author(s):  
Tetiana Bondaruk
Keyword(s):  
Legal System ◽  
Legal Discourse ◽  
Radical Change ◽  
Legal Environment ◽  
Stage Of Development ◽  
Starting Point ◽  
Legal Space ◽  
New Research ◽  
Legal Understanding ◽  
Research Tools

Іntroduction. Historical and legal science, as well as the science of law in general, is acutely faced with challenges related to the new stage of development of humanities knowledge and the corresponding change of research paradigm that occurs during the struggle between classical and nonclassical (postclassical) types of legal understanding Тhe aim of the article. Тhese processes need to be understood and "adapted" in particular in the historical and legal discourse. In particular, it is proposed to analyze the phenomenon of deformation of the phenomenon of law, and the resulting differentiation of the subject, in particular in historical and legal research, and the coherence of research tools offered within the classical and nonclassical types of legal understanding Results. Modern methodological research is a natural reaction of the domestic legal process to the dominance of the monistic materialist approach to the study of legal phenomena, which actualizes anthropological and axiological approaches. Both anthropologization and axiologization of law cause the deformalization of the phenomenon of law, creating a conceptual In the light of the above, it seems important to consider in relation to the relationship such concepts as legal reality (historical and legal reality), legal life, legal system as central, and legal space, legal field, legal environment as peripheral. At the same time, attention is drawn to the normative nature of the legal system, the ontological nature of legal reality, the inconsistency of legal life as a starting point in the choice of methodological tools. Introduction to the historical and legal discourse of «ontological metaphors»: legal communication, legal event, legal life, legal space, legal field, legal environment, etc., will activate the intersubjective model of knowledge of law as a sociocultural phenomenon, draw attention to the dynamics of law, using an arsenal of non-classical methodology. Conclusions. An overview of some trends that lead to a change in the object and subject of jurisprudence shows a radical change in its methodology, which should form research tools to answer new research questions. This process is part of the process of modern «cultivation» of integrated thinking as opposed to or in addition to analytical and systemic, which is characterized by consideration of reality in mechanistic categories, and, being irreversible, requires appropriate historical and legal reflections

Sentencing in cases of marital rape: towards changing the male imagination

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 592-611 ◽  
Author(s):  
Kate Warner
Keyword(s):  
Intimate Relationship ◽  
Male Sexuality ◽  
Marital Rape ◽  
Criminal Proceedings ◽  
Sentencing Decisions ◽  
Rape Law ◽  
Aggressive Male ◽  
Male Dominated ◽  
Mitigating Factor ◽  
Court Of Appeal

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.

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