Science topics: LawLegal Fundaments
Legal Fundaments
Science topic

Legal Fundaments - Science topic

Explore the latest questions and answers in Legal Fundaments, and find Legal Fundaments experts.
Questions related to Legal Fundaments
answered a question related to Legal Fundaments
Question
3 answers
The principle on rule of law is a fundamental one enshrined in the preamble of all the modern constitutions. The history of thought concerned with the concept of rule of law is quite rich. Despite this fact, the definition of the principle on rule of law is far from obvious and indisputable.
Here is the most recent of my several treatments of this question.  I hope you find it useful.
answered a question related to Legal Fundaments
Question
47 answers
If Adolph Hitler had presented evidence proving he was suffering from a mental illness that prevented him from knowing the difference between right and wrong at the times of the alleged violations of international war conventions and customs of war, could he have been found not guilty by reason of insanity? If so, what would the consequences be or what should they be?
Mental illness would technically be a defence to a war crime since anyone suffering from it would have the valid defence of being unable to form the mens rea for any crime.
Adolf Hitler was however not insane and did not suffer from mental illness at the time the war crimes of the 3rd Reich were planned and started.  Had Hitler been mentally ill he would not have been able to maintain control of the state and the equally criminal individuals within it.   
The crimes of the 3rd Reich could not have been the product of mental illness since they were carried out collectively by thousands of individuals often acting in the absence of any traceable orders.  Apart from the rantings at his speeches and the sinister threats in Mein Kampf there is no written evidence that Hitler himself ordered many of the most bestial of crimes committed in this regimes name.  His Lieutenants were all very keen to please and executing the Fuhrer's wish was enough motivation to those with similar hideously distorted world views.
A researcher
answered a question related to Legal Fundaments
Question
1 answer
Synthetic leases have been in decline since the Enron fraud.
Is the new standard getting read of this type pf leases or is it treating them differently than topic 840?
answered a question related to Legal Fundaments
Question
1 answer
Presidential Anti-Corruption Department of the Republic of Tatarstan
Ministry of Education and Science of the Republic of Tatarstan
Scientific and Research Institute of Anti-Corruption of
Kazan Innovative University named after V. G. Timiryasov (IEML)
invite to participate in the VI International Scientific Conference
«Anti-Corruption Dialectics»
(Kazan, 16th of December 2016)
Suggested subjects for discussion at the Conference:
- Corruption as a negative multi-dimensional social phenomenon;
- Arrangement of anti-corruption activities in Russia and foreign countries;
- Disadvantages of anti-corruption legal regulation and possibilities of their amendment;
- Effectiveness criteria of anti-corruption activities;
- Directions, forms, tools, mechanisms and technologies of anti-corruption;
- Anti-corruption forecasting and anti-corruption planning;
- Problems and perspectives of anti-corruption audit and monitoring;
- Problems and perspectives of anti-corruption education and outreach;
- Corruption-related crimes and accountability for them;
- Anti-corruption expert examination as corruption countermeasures;
- State and public control in the field of anti-corruption;
- Economical, psychological, philosophical and other aspects of anti-corruption.
The official languages of the Conference: Russian, Chinese, English.
Participation requests and materials for publication must be submitted via e-mail 161216@ieml.ru until 18th of November 2016.
Эту информацию лучше было в проекты закинуть Сергей, а не в вопросы.
P.S. Спасибо за оперативное составление и выкладку на сайте сборника этой конференции!
answered a question related to Legal Fundaments
Question
25 answers
should questioning be allowed by police investigators
Providing the interview is carried out by highly trained and specialist officers these intreviews can provide essential evidence.
answered a question related to Legal Fundaments
Question
18 answers
In FIDIC,there is a DAB to solve dispute before lawsuit  and arbitration.Just like  ad hoc arbitration is one of atbitration ways,there may be a large difiniation concept  to discribe  it.DAB‘s procedure is kind of like arbitration but its  judgement is not support by force,while arbitration is supported by force and once is it decided,one cannot go for lawsuit help?
I'll be another vote for mediation.  In our appellate court, cases come to us where they have already been decided at the trial level, whether as a matter of law by the judge, or as the result of a trial where evidence was taken. One might think that having an adjudicated "winner" and "loser" would tend to make the parties' positions more entrenched, and the parties less likely to change their views--particularly the "winners"  However, we do have a mediation office, to which we refer many cases which, in the judgment of our staff attorneys and judges are perhaps not so clear-cut.  Our mediator (whose surname is really Rambo) successfully mediates settlements about 40% of the time he is given a case, to the tune of perhaps 40 a year (our total caseload is about 900).  This is a significant achievement by an exceptionally gifted mediator, but demonstrates that even in situations where the legal posture of a dispute is more solidly established than before it would get to court, mediation can be an extremely successful way of bringing parties together to see a collaborative solution to difficult problems.
answered a question related to Legal Fundaments
Question
2 answers
In some circumstances, unilateral acts conducted by the manufacturer/supplier may constitute a restrictive agreement within the meaning of Article 101 TFEU. I've been looking for the most recent judgments of the EU courts in this subject. 
Sorry for the late reply. Thank you!
answered a question related to Legal Fundaments
Question
3 answers
The availability of smartphones and other electronic gadgets made it so easy for patients to audio/video record any conversations or visits with a doctor, with or without consent. Medical doctors are becoming wary of this reality, more so after an adverse event.
A written account is a doctors report of his visit or his consult. Because it is written by the doctor the report might not be completely objective. An audio/video record seems to be more objective, but by using just cerain parts of the conversation to formulate a complaint or in a law suit the truth might be twisted. Both the record or the written account can be used by the patient. The written account can be used by the doctor in defense of a criminal charge or complaint.
In the Netherlands it is prohibited to record a conversation without consent. Laws may differ in other countries, but some kind of privacy protection (not only for patients) is established in many countries.
answered a question related to Legal Fundaments
Question
7 answers
how lex certa as universal principle that derived from legality principle implemented in a case law? and what is the legal consequences if a regulation breached the standard of the lex certa principle?
is the lex certa principle only bind the legislator to make a obviously clear regulation or it's bind the judge to interpret the law as it vague written?
A court (I am writing of the commn law tradition) may take the approach that it has to interpret the law in front of it, but there is a principle that in case of lack of clarity in a criminal statute it should be construed in favour of the accused -- see the Canadian Suprem Court case of R. v. McLaughlin (1980 (attached). 
A court may, especially when faced with a constitutional/human rights challenge to a statute "read it down" -- this is not restricted to vague statutes. Indeed a court would probably prefer to use the interpretation approach rather than reading down because the latter is actually changing the expressed (or maybe the apparent) will of the legislature.
Another approach may be to hold legislation invalid (unconstitutional) because of vagueness. Not that the constitution necessarily expressly say law must be clear, but because the court holds that a human right cannot be limited other than by law that is clear. Especially if the constitution says that a limitation on rights must be "by law".  See the Kenyan case of Coalition for Reform and Democracy v Republic of Kenya (2015) (attached) especially paragraphs 259-263 and 275-76.  
I have limited myself to a very few comments and those on the common law. Of course similar approaches are to be found in other systems and in the European Court. 
I am also attaching a section from an English Court of Appeal case  in 2004 (quoted in a  House of Lords case in 2005) which covers quite a lot of ground.
answered a question related to Legal Fundaments
Question
3 answers
which they are the cases and judgments
Sorry, but I do not understand the question. I have never heard of "7 pronouncements of US Courts on Constitutional reform". 
answered a question related to Legal Fundaments
Question
7 answers
I am presently reviewing "dying declaration" cases decided by the Supreme Court of the Philippines. As a rule of evidence courts have given so much premium on "dying declarations" of victims. I am focusing on cases were the victim made the declarations just minutes prior to his demise or out of hospital declarations. Simply put, those cases where in the victim have not yet receive any medical interventions and subsequently died. I believe, however, that at that point significant physiologic changes are already in play that significantly affects the cognitive functions of the brain, specifically "recall of antecedent facts". Stated otherwise, a victim in shock can suffer acute brain dysfunction that affects the veracity of his "dying declarations."
For the US, the Dying declaration is in Rule 804 of the US Federal Rules of Evidence, "Hearsay Exceptions; Declarant Unavailable".
A good reference/legal explaination is in the Fordham Law Review Vol.38, Issue 3 Article 5: The Admissibility of Dying Declaration.
A researcher
answered a question related to Legal Fundaments
Question
4 answers
Bankruptcy as a civil institution for the settlement of debts between creditors and debtors, the public interest should not be positioned as a goal to be achieved. but on the other hand the processes and mechanisms of bankruptcy tends to be "repressive" can indirectly harm the public interest. Here the state took a role in keeping the public interest with limiting or even eliminate the rights of the creditors or the debtor in bankruptcy. While we know that the state was not free from the influence of various interests in particular of the interests of capital owners.
So we need clear yardstick in incorporating consideration of the public interest in bankruptcy to provide a balanced protection of the interests of the public and private interests.
A researcher
The interesting part about debtor / creditor relationships is that it is seldom the debtors interests that are upheld. Somehow corporate interests have become more important to the state than those of the living people they are meant to serve. A great example was the US bank bail out. It is notable that the state did not pay down the mortgages of the 'debtors', this would have alleviated personal debt issues whilst supporting the banks, but somehow it seemed more important to give the banks nice lump sums whilst letting the people lose their homes and go into bankruptcy. This was a social justice travesty, but illustrates the disregard, or even contempt the state has for the individual. Perhaps a better model would be to stop issuing money with interest debt attached to it and that holds no actual intrinsic value. Maybe we should stop listening to economists.. and stop listening to those that would sign us up for interest related debt.
A better question would be; Why are the leading 'creditors' interests more important than the interests of the living person when it is that person that facilitated the issuance of credit via the vesting of a promissory note in the institution that immediately profits from its securitisation without disclosing to, or sharing this profit with its maker?
The difference between monopoly money and cash is only the faith we put in it. How can we pay debts, when the money we use comes with debts attached to it and has no real value other than its value compared to other valueless currencies?
When it comes right down to the nitty gritty, is there any legislative basis for using digital electronic impulses as money anyway. I have seen nothing in the Currency Act that does, in fact, under the Australian Constitution only gold or silver coin is legal tender for payment of debt, it says nothing about using any other medium.
answered a question related to Legal Fundaments
Question
62 answers
There is a common logical fallacy that the crime statistics reflect in some way the morality of the society. STOP HERE AND THINK TWICE! The crime statistics reflect first to which extent the human behaviour may be considered to be criminal, i.e. these figures mirror the criminalization of certain activities. We can legalize prostitution or the retail sales of alcohol in Sweden and then statistics of crime will look different, not necessarily better. We can change the definition of the crimes; a broader definition will increase the statistics at least in the first period after the amendment. A narrower definition and a harder burden of proof for the prosecution will decrease the statistics, but attention not the criminality. The most fallacious part of the statement is to pass by the fact that an increase in the statistics can often reflect a more effective enforcement. The police and the other authorities have invested lots of public money in a betterment of the enforcement. This has nothing to do with the morality of the people living in that jurisdiction.
Think about the taxation for instance! One can define taxation as a very moral activity, it is after all about sharing and giving to the people in need, but also as an immoral activity because a person is dispossessed by his/he property, property which has been obtained completely in a legal manner. Of course that some crimes appear to be absolutely horrifying and undoubtedly immoral, but you as an outsider, as a second hand listener, you will never know the whole story. Therefore the biblical story is still wise: Don't throw any stones on nobody! You might be less innocent than that person.
Another short reflection about the truth and the search for truth and the idea that the ultimate truth is God! To me this statement is related with the first the biblical advice 'Don't throw stones!'. The socially constructed truth is always relative and it serves some common purposes. Panem et circenses, bread and circus/games, this is what it is served. Now-a-days the circus is more Hollywood constructed than live. The main idea is that you do not witness the truth, we are only told the 'truth' and if the truths being told fit with your frame of values, they are going to be accepted as reality. If they come in conflict with this frame of values, you will reject them and start to search about the 'real' truth and so on. It sounds strange but in order to provide justice and be impartial, you have to forget about your own cultural bias or moral bias and judge as to the law, not as to the morality.
The values of the society can not be alienated from the law, the law comes as a reflection of these values, but in the moment of becoming LAW, it becomes the main point of reference for the judge. The relation between law and moral values is a very complex one indeed.
I would like you to ponder a bit on the ideas of law and moral in society based on relative truths. What is the role of moral for the law maker or for the law enforcer? Do moral have any significance for a judge?
Law is an instrument of policy. In the west, regulatory policy is formulated by the state with a view to the interests of various stakeholders and including its own. Law is moral to the extent those interests are moral; ergo, often not..
answered a question related to Legal Fundaments
Question
27 answers
On 1 July 2012, the preliminary reference procedure was introduced at the Supreme Court of the Netherlands. When lower civil courts face controversial points of law, they may refer a question of interpretation to the Supreme Court and request a preliminary ruling. This way, the Supreme Court should be able to provide legal practice with a faster and more specific response to pressing legal questions than through the ‘ordinary’ procedure.
This preliminary reference procedure is not a modern invention. It was already known in Rome, existed in a specific form in France (référé législatif, where a question of interpretation was referred to the legislator), was used at the Italian Corte Costitutionale and has been a powerful tool for the development of EU law by the European Court of Justice in Luxembourg (see the attached blog and article). Furthermore, Protocol 16 to the ECHR will allow highest courts of states that have ratified this Protocol to refer a question of principle to the European Court of Human Rights for an advisory opinion.
I wanted to use ResearchGate for a small comparative exercise. Perhaps you would like to answer the following questions. May lower courts in your country refer a question of interpretation to the highest court(s) in your country? Did such an instrument once exist, or is the introduction of such an instrument currently under consideration in your country?
I am also interested in literature on this subject and in other relevant international examples.
Your help is greatly appreciated,
Ruben
Frist, in order to understand the legal system in the United States it is important to realize that the United States is a federation of governments with some power given to the federal goverment, located in Washington DC, and many powers residing in the member governments, that is the states, territories, and other affiliated governments in the "United "Federation" of States" as I like to call it.
As stated in a prior posting, the federal court system, designed primarily to enforce and interpret federal law, but not state law, is limited by the "cases and controversies" requirment of the US Constitution.
I have not looked at the constitution of each of the member governments in the United "Federation" of States but some do allow something at least similiar to what you suggest. However, many of the affiliated governments have a position called "Attorney General" and this office may issue advisory opinions on some matters. These are not law however but as quoted from the website of the California Attorney General, "The formal legal opinions of the Attorney General have been accorded "great respect" and "great weight" by the courts." See: https://oag.ca.gov/opinions
answered a question related to Legal Fundaments
Question
2 answers
case law as authority would be usefull in this regard. i would appreciate a case of reviwe where the attorney was allowed advocates' fees for representing a client in the high court
Is there a difference between an attorney and an advocate in your jurisdiction?
answered a question related to Legal Fundaments
Question
8 answers
In an addendum to a charter party contract the charterer was replaced with a third person. In the first clause parties agreed on this  "replacement". In the second and third clauses they agreed on transferring " liabilities" and " responsibilities" but there is no agreement on " rights" in the document. Does the word replacement convey the meaning of transferring rights as well? 
Thank you. 
Yes, in your case this was specifically contracted for. However in a case where the contract provides general terms on a successor in title then that would hold. Where a contract is silent on this issue then the whole contract would have to be studied for any implied indications and again in the absence of which an implied right may be argued.
answered a question related to Legal Fundaments
Can we weigh a legal precedent in tort actions?
Question
9 answers
  • A researcher
    A researcher
In the matter of medical negligence (neonatal cephalohematoma), where both sides present equally reasoned and chill  arguments based on precedents --  equal in their gravity, external validity, date and level of the courts, and when there is no place for a plain error doctrine, affirmative defense, discovery rule, or statute of limitation -- which side will succeed on the merits? In addition, both councils are equally charismatic in the eyes and guts of justice or the jury. This is a general question with zero specifics, and it seeks a general answer: if we have a case  with two fighting precedents (arguments) with equal gravities, which side is the winner?
There will always be an an element that will persuade the judge/judges to take a certain direction. It could be an element in the fact  of the cases or an element in the law. For common law countries it may be interpretation of a statute/code or an earlier precedent. For Civil law countries the final decision may arise from the interpretation of the statute/code.(and judges may differ) The best way to look at it is in cases where you have seven judges and 4 think differently from the three. Such is the reason an odd number of judges is appointed so as to always get a majority view. 
answered a question related to Legal Fundaments
Question
5 answers
See Above
Prof. Eileen McDonagh, in her paper Adding consent to choice in the abortion debate, successfully demonstrates how public resources should be allocated to medical abortions, that the woman should be entitled to an universal government funding for the procedure, and how such policy can happen through a shift of perspective of our ingrained understandings regarding the (legal) relationship between a woman and a fetus. She does it by grounding the right to abortion not merely on right to privacy ( as famously articulated as "My body, my choice) but also on the woman's "right to consent to the pregnant condition of her body that results from the fetus." Further, she articulates 12 steps, depicting a new theoretical framework. 1. Choice and consent, 2. The State designates the fetus as a separate, state-protected entity, 3. : From choice to consent, 4. Pregnancy is a condition “resulting from” the fetus, 5. The fetus is not a conscious agent, 6. Massive change in a woman’s body “result from” the fetus, 7. The law defines injury on the basis of “consent, 8. Non-consensual pregnancy as injury, 9.Consent to sexual intercourse does not legally require consent to pregnancy, 10. Abortion as self-defense, 11. Equal Protection of Fundamental Rights, 12. Similarly situated,
I recommend the article to anyone who's interested in the topic and would like to strengthen her/his understanding of the ethical notions attributed to pregnancy/ abortion/ fetus, and the legal implications per se derive from these understandings, which surround today's societies. 
Kind regards!
answered a question related to Legal Fundaments
Question
9 answers
I'm a patent attorney, so my focus is primarily on intellectual property rights, i.e. patent rights. I would be grateful for any input from anywhere in the world on the question as to whether 'body bits' can be owned or patented (and their use). By 'body bits', I mean human biochemicals or fragments thereof (e.g. genes, proteins, hormones, etc.), human cells (e.g. HeLa, Moore, etc), and human tissues or other macrostructures (e.g. Bentham's head). References to people's papers and to legal decisions would be most welcome. My wife and I wrote a book with CUP on exclusions from patentability in Europe that was published a couple of years ago and my mind is now turning to body bits.
This issue has been covered extensively in the States, both in literature and in court decisions. It should be fairly easy to find references through Google.
answered a question related to Legal Fundaments
Question
9 answers
As I understand the term "service-oriented state": each function of the state is assessed in the same way as commercial activity. For instance, PUBLIC ORDER & SAFETY as governmental functions are provided to communities by police forces. Armed forces provide us with military defense, etc. That's why the effectiveness of government is measured as market and non-market services on the basis of their economic value.
The questions are:
1. how does this approach is developed in modern science?
2. how do different governmental agencies measure their own effectiveness?
3. how we can use the concept of service-oriented state to protect rights of citizens, argue the necessity to provide effective measures in each sphere of governmental activity? The argumentation is the following: if the state provide bad-quality services, communities and individuals have the right to get fair remedy and compensation.
I would glad to answer your questions and discuss this topic.
Dear Evgeny, I am pasting a link which has a scanned image of that decision, which has become a binding precedent in Indian law wherever state responsibility for security and rights of the individuals are concerned. Compensation is no longer a gratuitous act of the state, but is a fundamental right of the citizen.
There are a few other obligations which go to show that it is a welfare state.
I promise to get back to you further on this, as of now I have a lecture on arbitration law. Will research more on your question during the weekend. Look forward to an interesting discussion.
asked a question related to Legal Fundaments
What grounds do I have to set aside and vacate?
Question
If I am on public assistance and therefore income eligible for a fee waiver but the judge denied me my request, is that not a denial of my due process rights to equal access? He also unfairly ordered me to pay the first $1,000 of minor's counsel's fees, and then ordered us to split the remainder. These proceedings were launched by my children's father abducting the children, filing false allegations and trying to deceitfully gain custody of the kids. No acknowledgement of his crimes or acts, history of domestic violence, and instead considered his petition for custody and spent 8 months trying to substantiate his false allegations putting me on trial and holding me under scrutiny. The venue is 170 miles away from my home, causes me and children to miss a school, costs me a ton of money, and this judge never allowed me to present my case. I've been silenced, oppressed and ignored, and meanwhile the perpetrator has gotten off like a king. And he gives "joint legal?" This is contrary to family code. I want to set aside and vacate and get a change of venue
asked a question related to Legal Fundaments
Question
Specifically: Scientific Committee on Health and Environmental Risks (SCHER) and Scientific Committee on Consumer Safety (SCCS)
answered a question related to Legal Fundaments
Question
14 answers
What is the difference between these two terms in property law, "Right to possession" and "Right of possession"
You must be careful when you refer to possession. At least in South American law possession is a variable completely different property. As well questions, I think the difference between the two questions is exactly the same.
Right to possession or right of possession is exactly the same just change the item used. Depends on how much you are to say one or the other definition. The point is that the right of possession is the same and explains:
Possession is the sum of the animus (intent to possess) + corpus.
The property is the sum of the animus + corpus + domain title.
answered a question related to Legal Fundaments
Question
1 answer
Throughout history artists have produced works which tested society’s standards of decency. Society, or parts of it, may respond to these controversial works with harsh criticism and scorn. In free societies, artists may produce any type of work that their talent, imagination and means can support, whether it is controversial or not. However, the question arises: Do artists have the same freedom when their art is publicly funded by taxpayer dollars?
The 1989 NEA rules were challenged and found to be unconstitutionally vague by a U.S. District Court in California because the determination of what was obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp. 774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the NEA’s grant process. In 1990, Congress adopted an amendment which directed the NEA to take into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.”
This amendment led to a 1998 U.S. Supreme Court decision upholding the decency standard enacted by Congress. The ruling in  href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=NEA_v_Finley”>National Endowment for the Arts v. Finley initially seemed a heavy blow to the First Amendment as a bulwark protecting artistic expression. In NEA v. Finley, the Court held that the NEA may consider public standards of decency in deciding which artists should receive federal grants.
However, Justice Sandra Day O’Connor, writing for the majority, took the sting out of the law. She explained that the decency standard was merely advisory and simply added one more consideration to a variety of pre-existing subjective criteria.
Though some might argue that the decency standard infringes upon free speech because it allows the NEA to favor certain viewpoints over others, the consensus is that the law poses no real threat given that the high court has characterized it as a mere piece of advice rather than a law that must be enforced.
I think no. We must to have freedom in personal expressions but we have to respect the ethics country society. Sometime the legal rules forget the personal rights around the countries in the world. The customary rules think in Greek and Roman society are forgotten to in some countries by the Supreme Courts