scholarly journals Files Circulation and the Forms of Legal Experts

2008 ◽  
Vol 1 (1) ◽  
pp. 3-24 ◽  
Author(s):  
Leticia Barrera
Keyword(s):  
Supreme Court ◽  
Human Agency ◽  
Division Of Labour ◽  
Gift Exchange ◽  
Ethnographic Research ◽  
Rational Basis ◽  
Common Assumption ◽  
Construction Of Knowledge ◽  
Professional Bureaucracy ◽  
Law Making

A common assumption in Western legal cultures is that judicial law-making is materialised in practices that resemble the operation of a professional bureaucracy, practices that are also central to the construction of knowledge in other systems, such as accounting, audit, science, and even ethnography (Dauber 1995; Strathern 2000; Riles 2000, 2004, 2006; Maurer 2002; Yngvesson and Coutin 2006). This argument situates the judiciary as a formalistic organization that builds its ambition of universality on the procurement and dissemination of knowledge on a rational basis. Drawing on ethnographic research in the Argentine Supreme Court, this paper seeks to unpack this assumption through a detailed look at how the figures of legal bureaucrats, in particular law clerks, become visible through the documentary practices they perform within the judicial apparatus. As these practices unfold, they render visible these subjects in different forms, though not always accessible to outsiders. Persons are displayed through a bureaucratic circuit of files that simultaneously furthers and denies human agency while reinforcing the division of labour within the institution. This dynamic, I argue, can be understood in light of Marilyn Strathern’s (1988) insights about the forms of objectification and personification that operate in two “ethnographically conceived” social domains (Pottage 2001:113): a Euro-American commodity-driven economy, and Melanesia’s economy based on gift-exchange.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

The Gift

2017 ◽  
Vol 10 (3) ◽  
pp. 272-282
Author(s):  
Rosalie Metro
Keyword(s):  
Theoretical Framework ◽  
Gift Exchange ◽  
Ethnographic Research ◽  
Ethical Dimension ◽  
Social Hierarchies ◽  
The Gift ◽  
Shifting Identities

In this autoethnographic essay, I explore the role that gift exchange has played in building and sustaining my relationships with informants during my ethnographic research in Burma and its borderlands. I argue that gift exchange is not a byproduct of research but instead an integral part of it. Using Marcel Mauss's (1925/1954) seminal text The Gift as a theoretical framework, I weigh the items I've given against those I've received, detailing the emotional and material effects of this “potlatch” on social hierarchies, personal obligations, and shifting identities. This attempt to reckon with the ethical dimension of gift exchange is an invitation to other researchers to share their stories of giving and receiving.

Part IV Federalism, A Federalism in Canada, Ch.19 Key Doctrines in Canadian Legal Federalism

2017 ◽  
Author(s):  
Brouillet Eugénie ◽  
Ryder Bruce
Keyword(s):  
Supreme Court ◽  
Operative Approach ◽  
High Stakes ◽  
Asymmetric Effects ◽  
Constitutional Order ◽  
The Supreme Court ◽  
High Degree ◽  
Legal Federalism ◽  
Law Making ◽  
Degree Of Overlap

The division of legislative powers in the Constitution Act, 1867 is the most important textual expression of the federal principle that is at the heart of the Canadian constitutional order. The judiciary has the responsibility of interpreting these provisions and thus of determining the boundaries of the law-making powers of Canadian legislative bodies. In performing this high-stakes task, the courts have developed a rich jurisprudence that draws on text, history, structure, and principle. In recent decades, the Supreme Court has articulated a “modern” or “co-operative” approach that interprets both federal and provincial legislative powers generously, and tolerates a high degree of overlap and interplay between them. Despite this commitment to maximizing the democratic space available to all Canadian legislatures within their respective areas of jurisdiction, some doctrines developed by the courts have had asymmetric effects that favour the federal Parliament.

scholarly journals Tinjauan Yuridis Pembatasan Upaya Hukum Kasasi Dalam Kasus Gugatan Terhadap Keputusan Pejabat Daerah

2017 ◽  
Vol 1 (2) ◽  
pp. 67-82
Author(s):  
Muhibuddin Muhibuddin ◽  
Mahdi Syahbandir ◽  
M. Nur Rasyid
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Justice System ◽  
The Supreme Court ◽  
Legal Substances ◽  
Court Of Appeal ◽  
Law Making

Pasal 45A Ayat (2) huruf c Undang-Undang Nomor 5 Tahun 2004 tentang Mahkamah Agung membatasi pengajuan upaya hukum kasasi terhadap perkara tata usaha negara yang objek gugatannya berupa keputusan pejabat daerah. Pembatasan ini menimbulkan ketidakadilan bagi pencari keadilan (yustisiable) yang ingin mendapatkan keadilan jika pada tingkat pertama dan banding tidak diterima gugatannya. Di samping itu, pembatasan tersebut telah merubah sistem peradilan di Indonesia yang terdiri dari tingkat pertama, banding dan kasasi. Penelitian ini bertujuan untuk mengetahui alasan pembatasan upaya hukum dalam Undang-Undang Nomor 5 Tahun 2004, tinjauan keadilan kepada warga negara dan asas-asas pembentukan perundang-undangan yang baik. Penelitian ini merupakan penelitian yuridis normatif  yang ingin mengidentifikasi dari aspek hukumnya. Data yang digunakan terdiri bahan hukum primer, sekunder dan tersier. Hasil penelitian menunjukkan bahwa pembatasan pengajuan upaya hukum untuk mengurangi penumpukan perkara di Mahkamah Agung. Akibat pembatasan tersebut sangat merugikan warga negara yang ingin memperjuangkan haknya dan tidak mencerminkan asas-asas pembentukan peraturan perundang-undangan yang baik.Article 45 (2) point C of the Act Number 5, 2004 on the Supreme Court Especially Limiting judicial review on the decision of the object of civil administrative state’s case which its lawsuit is the decision of officials in district, municipality or provincial officials. The limitation is not fair towards every justice seekers who are willing to obtain justices in the first court and the court of appeal have not tried the cases fairly. Apart from that the limitation has changed the justice system in Indonesia consisting of the first instance court, the court of appeal, and review court of the Supreme Court. This research aims to know the reasons of such limitation in the Act Number 5, 2004, justice review for citizens and principles of well law making. This is juridical normative research, which is trying to identify legal substances. The sources of data are secondary that are primary, secondary and tertiary legal sources. The research shows that the limitation of judicial review is to reduce the number of cases at the Supreme Court. The result of the nullification causes loss for citizens who are trying to fight for their rights and it does not reflect the principle of well law making process.

scholarly journals STRENGTHENING PANCASILA AS NATIONAL IDEOLOGY TO IMPLEMENTATE THE BALANCING VALUES TO IMPROVE LAW’S APPLICATION IN INDONESIA

2018 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Muhammad Chairul Huda
Keyword(s):  
The State ◽  
Rational Basis ◽  
Modus Vivendi ◽  
People’S Perception ◽  
National Ideology ◽  
Race Ethnicity ◽  
The Law ◽  
Basic Philosophy ◽  
Law Making ◽  
The Way

People’s perception of Pancasila seems to be on the way back. It reminds us that the acceptance of Pancasila as the national ideology is actually not something taken for granted. For that reason, it is necessary to refresh the Pancasila from aspects of knowledge, understanding and practice of the philosophical values contained in it. Law development must be started from the values of Pancasila, because essentially Pancasila is a milestone of convergence of ideas and thoughts on the basic philosophy of state discussed deeply by the founders of the state. Pancasila becomes a sublime agreement (modus vivendi) which is then established as the foundation of state ideology. In this case, Pancasila becomes the rational basis of assumptions about the law to be established as well as the orientation that shows where the nation and state should be established. Thus, Pancasila is an agreement and consensus to build a nation of one country, without considering the different backgrounds that include religion, race, ethnicity, culture, language and others. As the foundation of the state, Pancasila becomes the rechtsidee that should be written in every law-making and enforcement.

scholarly journals The criminal liability of the medical team considering the recent orientation of the Italian Court of Cassation

2022 ◽  
Vol 25 ◽  
pp. 214-225
Author(s):  
Emanuela Furramani ◽  
Rrezart Bushati
Keyword(s):  
Medical Treatment ◽  
Supreme Court ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Case Law ◽  
Division Of Labour ◽  
Court Case ◽  
Medical Team ◽  
Supreme Court Case ◽  
Italian Constitution

This article aims to analyze the thematic of medical team liability considering the recent Italian Supreme Court case-law, highlighting the various problems linked to the identification of the responsibility of each member of the team. The participation of several subjects in the execution of medical treatment makes the question of criminal liability very complex, especially when it comes to inauspicious events, such as injuries or death, occurring during medical treatment. The question concerns the exact identification of the duty of care and vigilance of the medical team and whether this duty is in line with the principle of individual criminal responsibility guaranteed by Article 27 of the Italian Constitution. In this regard, the case-law has elaborated the so-called “principle of reasonable confidence”, according to which the division of labour that belongs to each member should involve a delimitation of his responsibility, limited only to what is within his competence, except in case of the person who organizes, directs, and controls the team. Precisely, based on this principle, the Italian Supreme Court in 2018 reasserted that in the medical team is necessary to identify the role played by each member, thus avoiding resorting to objective responsibility.

scholarly journals Judicial Law-making and Its Regulation in Independent Ukraine: Its History and Development

2021 ◽  
Vol 4 (3) ◽  
pp. 82-100
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Legal Regulation ◽  
Judicial System ◽  
Judicial Power ◽  
Constitutional Court ◽  
Judicial Reform ◽  
The Supreme Court ◽  
History Of ◽  
Law Making

The article studies the history of the origin and development of legal regulation of judicial law-making in Ukraine. The analysis of doctrinal ideas about judicial law- making, as well as the peculiarities of its formation in Ukraine, allowed us to emphasise that our scientific research is relevant because of: 1) the duration of the domestic judicial system and judicial reform, which dates back to the proclamation of Ukraine’s independence (1991) and continues to this day; 2) the ambiguity of the legal support for judicial law-making in Ukraine, the high level of its variability, and the uncertainty of the legal status of the subjects of judicial power in the mechanism of domestic law-making; 3) the doctrinal uncertainty of the place of judicial law-making in the domestic legal system, the ambiguity of its scientific perception, and the understanding of its function in the domestic mechanism of legal regulation. This paper analyses the provisions of the legislation of Ukraine in terms of legal support for forms and procedures of judicial law-making, the legal significance of judicial law-making acts, and their impact on administering justice in Ukraine. Particular attention is paid to the activities of the judiciary in the areas of law enforcement and law-making, the relationship and interaction of which requires strengthening in the current context of reforming the judicial system and the judiciary in Ukraine. The stages of development of the legal regulation of judicial law-making in Ukraine are revealed, the peculiarities of the legal support for judicial law-making are determined, and the content of the legal regulation of the mechanism of participation of the subjects of the judicial power of Ukraine in the national law-making is characterised. Analysis of the history of the legal regulation of judicial law-making in Ukraine and the current state of its legal provision allowed us to conclude that despite the scale of legislative changes in the legal support for the judicial system of Ukraine today, neither the Supreme Court, nor the Constitutional Court of Ukraine, nor any other court institution is recognised by the legislation of Ukraine as subjects of law-making. The legislation of Ukraine does not contain a clear definition of their status as the subject of law-making with the right to accept generally obligatory acts of this process. It is noted that such uncertainty significantly weakens both the legal support for the courts and their activities. At the same time, it is noted that as a result of the adoption of legislative acts within the judicial reform during 2014-2017, which are still in force today, the legislator has made a significant step towards recognising and consolidating the official status of judicial law-making, namely: 1) a number of legislative powers of the Supreme Court and the Constitutional Court of Ukraine were consolidated; 2) the legislative regulation of the stages of the law-making process by the Supreme Court and the Constitutional Court of Ukraine has been strengthened; 3) the legal consolidation of the status of law-making acts of the Supreme Court and the Constitutional Court of Ukraine has been improved.

scholarly journals LIETUVOS AUKŠČIAUSIASIS TEISMAS BAUDŽIAMOJOJE TEISĖKŪROJE

Teisė ◽  
2013 ◽  
Vol 88 ◽  
pp. 7-22 ◽  
Author(s):  
J. Prapiestis ◽  
M. Girdauskas
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
The Supreme Court ◽  
Law Making

Straipsnyje, pasitelkiant naujus šaltinius, išsamiau ir būtent materialiosios baudžiamosios teisės srityje atskleidžiami Aukščiausiojo Teismo dalyvavimo teisėkūroje būdai ir problemos.The article, using new sources, reveals at length ways and problems of taking part in material criminal law making by the Supreme Court of Lithuania.bsp;

Estoppel by Convention and Pre-Contractual Understandings: The Position and Practical Consequences

2011 ◽  
Vol 42 (3) ◽  
pp. 511
Author(s):  
Kristin Bunting
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Common Assumption ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Law

Recently, the House of Lords held in Chartbrook Ltd v Persimmon Homes Ltd that an understanding or common assumption reached by contracting parties in the course of their pre-contractual negotiations, including "an assumption that certain words will bear a certain meaning" can provide the basis for an estoppel by convention claim. This was reaffirmed by the New Zealand Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd. Both the House of Lords and the Supreme Court assumed that this was well established. Given that the issue was unsettled in England and with two divergent lines of authority in Australia, the House of Lords and Supreme Court should not have assumed this. In light of this development in the law, it is also argued that where the evidence proves that the parties established an understanding as to the meaning of a term in a proposed contract, then surely that is the meaning of that term, as a matter of interpretation. In addition, allowing consideration of pre-contractual negotiations to prove an estoppel by convention has undermined the rule that pre-contractual negotiations are inadmissible as an aid to interpretation of a contract.

All Things in Proportion? The United States

2019 ◽  
pp. 96-126
Author(s):  
Alec Stone Sweet ◽  
Jud Mathews
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Supreme Court ◽  
The United States ◽  
Current Approach ◽  
Constitutional Rights ◽  
Rational Basis ◽  
State Laws ◽  
Strict Scrutiny ◽  
The Supreme Court

This chapter considers constitutional rights doctrines of the United States in light of the global spread of proportionality. It challenges the view that proportionality is alien to the American constitutional experience, showing that American courts have developed approaches to rights that closely resemble proportionality. In particular, the Supreme Court’s test for state laws that burdened interstate commerce, developed in the nineteenth century, resembled proportionality, and so did “strict scrutiny” review as it was initially applied by the Supreme Court in the mid-twentieth century. The Supreme Court’s current approach to constitutional rights, relying heavily on separate tiers of review, is characterized by three pathologies: (i) judicial abdication, in the form of rational basis review; (ii) analytical incompleteness, when an explicit balancing stage is omitted; and (iii) instability, leading to reclassification and doctrinal incoherence. The chapter argues that proportionality can protect rights more consistently and coherently than the current American approach, and concludes by showing how courts courts could give proportionality greater expression in constitutional doctrine.

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