Courts play a central role in legal and political processes in many countries in the common law world. Legal actors have a stake in making sure that legal processes and procedures are perceived as legitimate, both by the general population and professionals. Civil procedure, in both common law and civilian legal systems, has been historically known for its complexity. This article presents a body of empirical research about courts and procedural rules, and their role in different societies. It (...) also analyzes research and states how it has been used in policy debates and reforms. In addition, it discusses the question of the demand and supply for empirical research about rules of procedure and courts, and explores the difficulty of carrying out empirical research that goes beyond a focus on the institutional needs of the courts themselves and the reformers interested in their own court-reform agendas. (shrink)

The objective of the paper is to create a concept of what securing the claim is, based on the positive legislation of Kosovo’s law, comparing its regulation with laws of somewhat similar legislations of neighbouring regions, understanding its implementation in practice, to achieve conclusions and remarks based on law, facts, practice, and the comparative aspect. The Civil Procedure Law in the Republic of Kosovo is regulated with contested, non-contested or enforcement procedure. Securing the claim is an institute (...) expressively regulated by the “Law on Contested Procedure of the Republic of Kosovo” on its XXI Chapter that defines its means and types. Considering securing the claim measures are present in civil law to prevent any possible threat of protected rights until the final verdict is given, this paper tends to achieve a realization of how these measures practically succeed in actual cases, if they meet the criteria set in the law, or if securing the claim proposal is approved by the court, if they unintentionally restrain the respondent from using their rights. Moving forward, how one distinguishes claim security and interim measures from one-another although they describe the main concept, is strictly reviewed under this article, to finally achieve conclusions and remarks based on questions raised as above. (shrink)

The article aims to assess whether the procedural innovations introduced by the reform of the civil procedure law of the Republic of Lithuania have brought changes in judges’ behaviour, which the reform intended to achieve. The study analyses the driving reason behind the reform of the civil procedure law, its objectives, and the ways the five innovations brought about by the reform changed the behaviour of the judges. The analysis of the legal sources and the empirical (...) study show that some of the innovations introduced by the Civil Procedure Code have not yet been properly assimilated and that the code, which has been in force for twenty years, is still not fully operational and understood. (shrink)

This book shows the surprising dynamism of the field of civil procedure through its examination of a cross section of recent developments within civil procedure from around the world. It explores the field through specific approaches to its study, within specific legal systems, and within discrete sub-fields of civil procedure. The book reflects the latest research and conveys the dynamism and innovations of modern civil procedure - by field, method and system. The (...) book's introductory chapters lay the groundwork for researchers to appreciate the flux and change within the field. The concluding chapters bring the many different identified innovations and developments together to show the field's ability to adapt to modern circumstances, while retaining its coherence even across different legal systems, traditions, fields and analytic approaches. Specifically, in this book the presence of dynamism is explored in the legal systems of the EU, France, the US, Brazil, Australia, the UK and China. So too that dynamism is explored in the contributions' analyses and discussions of the changes or need for change of specific aspects of civil procedure including litigation costs, class actions, derivative actions, pleadings, and res judicata. Furthermore, most of the individual contributions may be considered to be comparative analyses of their respective subjects and, when considered as a whole, the book presents the dynamism of civil procedure in comparative perspective. Those discrete and aggregated comparative analyses permit us to better understand the dynamism in civil procedure - for change in the abstract can be less visible and its significance and impact less evident. While similar conclusions may have been drawn through examinations in isolation, employing comparative analytic methods provided a richer analysis and any identified need for change is correspondingly advanced through comparative analysis. Furthermore, if that analysis leads to a conclusion that change is necessary then comparative law may provide pertinent examples for such change - as well as methodologies for successfully transplanting any such changes. In other words, as this book so well reflects, comparative law may itself usefully contribute to dynamism in civil procedure. This has long been a raison d'être of comparative law and, as clear from this book's contributions, in this particular time and field of study we find that it is very likely to achieve its lofty promise. (shrink)

The paper discusses the problem of translating selected Civil Procedure terminology from Greek into Polish and from Polish into Greek. The research material includes corpora of normative acts and more precisely those, which regulate Civil Procedure of Poland, Greece and the Republic of Cyprus. The research methodology is based on the concept of parameterisation, according to which the legal linguistic reality becomes axiomatic. Then the set of relevant dimensions and parameters is extracted. The set of parameters (...) are a tool where certain information is given: yes/no/none and thus a clear result of comparison between legal system bond terminology can be drawn up. The results of this comparative analysis provide highly regulated and available translation equivalents, which are essential when legal translation is performed within the frame of legal reality. Selected examples of use of these equivalents are given when discussing the results. (shrink)

Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and (...) the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well."--Back cover. (shrink)

This article examines the process for the eviction of tenants, which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, (...) the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages. (shrink)

Los estudios modernos sobre derecho islámico han puesto de relieve la necesidad de estudiar los procedimientos jurídicos en el Islam y el papel desempeñado por la práctica judicial en su formación. Se considera en general que, en el período temprano, los cadíes disponían de mayor libertad en lo relativo a testigos y métodos para establecer pruebas. Posteriormente y de forma gradual el sistema se volvió más rígido y restrictivo. En relación a este desarrollo, los investigadores han propuesto distintas fechas, que (...) van desde la segunda mitad del siglo VII hasta el siglo VIII e incluso hasta el siglo XI. Estos investigadores han tratado la doctrina de al-yamīn ma‛ al-šàhid como una excepción dentro del procedimiento establecido por la šarī‛a que, según ellos, se basaba estricta y mecánicamente en la doctrina de los dos testigos. Para dichos investigadores, la doctrina de al-yamīn ma‛ al-šàhid surgió bajo la influencia de determinadas locadidades o bien por influencia judía. Este artículo propone que esa doctrina debió de surgir en el contexto del período de la guerra civil, cuando las cuestiones sobre qiṣāṣ, qawad, qasāma y ḥakam fueron discutidas con frecuencia en relación con el Corán y la sunna común y cuando se sintió la necesidad de reformar la institución del ḥakam. Sobre la base de afirmaciones dispersas de ulemas que vivieron en fechas cercanas a ese período, afirmaciones que se ven confirmadas por los comentarios de Wakī‛, se concluye que Mu‛āwiya fue quien introdujo ese método para reformar la institución del ḥakam. La práctica judicial de esta doctrina también confirma que estaba demasiado difundida como para poder considerarla una práctica medinense o una práctica local, tal y como pretenden algunos juristas clásicos, los tradicionistas y algunos investigadores modernos. (shrink)

The United States Court of Appeals for the First Circuit recently upheld a United States District Court for the District of Maine Judge's decision to dismiss a Maine plaintiff's medical malpractice claim against a Massachusetts hospital defendant for want of personal jurisdiction over the hospital. The Court of Appeals found it unreasonable to hale hospitals into an out-of-state court merely because they accept out-of-state patients.Plaintiff Danielle Harlow is a Maine resident who suffered a stroke at the age of six while (...) undergoing a medical procedure at Children's Hospital of Boston, Massachusetts. The stroke, allegedly caused by the Hospital's negligence, led to brain damage resulting in partial paralysis and cognitive and behavioral impairments. The procedure was supposed to treat Harlow's rapid heartbeat, a condition related to her Wolff-Parkinson-White Syndrome. Harlow's pediatrician in Maine recommended that she visit Children's Hospital in Boston to treat her arrhythmia. (shrink)

Recent major amendments of the Code of Civil Procedure of the Republic of Lithuania have added new and improved older procedural instruments that may be used for reimbursement of losses inflicted by the abuse of process. The law now clearly states that the court may take into account improper conduct of the participants when deciding on distribution of litigation costs. A fine in favour of the party aggrieved by the abuse may also be imposed. Therefore, in this article (...) the authors analyse litigation costs and private fine as measures to reimburse losses caused by the abuse of civil procedure. The authors argue that litigation costs can be a fairly effective and relatively easy-to-use procedural instrument, which might not only prevent procedural abuses, but also compensate losses inflicted by it that falls within the category of litigation costs. Therefore, changes to the statutory legislation, expressly empowering a court to deviate from general rules of distributing and awarding litigation costs, by taking into account the propriety of the party’s actions in a procedure and causes that have given rise to those litigation costs, are welcomed. (shrink)

On 21 June 2011 the Parliament of the Republic of Lithuania adopted extensive and important amendments of the Code of Civil Procedure of the Republic of Lithuania. Most of them came into force on 1 October 2011.One of the important tasks that have been mentioned for the preparation of amendments was to ensure the implementation of the Constitutional Court’s doctrine of matters of civil procedure. This article analyses one of the changed aspect - the system of (...) defence of public interest. The doctrine of concept of public interest was formed by the resolutions of the Lithuanian Constitutional Court adopted on 16 January and 21 September 2006. That concept was quite confusing and could be interpreted widely as well as narrowly (such as protection of special key values in the Constitution). This paper analyses the manner in which the doctrine of the Constitutional Court has been implemented in the law of civil procedure. In addition, the article analyzes the history of the amendments in the Code of Civil Procedure relating to the protection of public interest. The author presents a situation proposed to the Working Group that prepared the draft amendments to the Code of Civil Procedure, and compares the proposals with the effective version of the Code of Civil Procedure. The same article analyses the way that the effective version of the Code of Civil Procedure forces to the protection of the public interest doctrine of the Constitutional Court. The author concludes that the current system is conducive to abuses when the state can envisage the existence of public interest in every dispute and intervene in its investigation. In addition, the court is transformed into an entity liable to defend public interest, while it should be an independent and impartial entity to administer justice. Let us hope that in judicial practice the concept of public interest will be interpreted very narrowly and the Code of Civil Procedure provides the right to collect evidence or apply interim protection measures and etc. will be seen as a political mistake and generally will not be applied (except when it comes to non dispositive cases). (shrink)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such (...) branches as, in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

Different countries worldwide have issues with adapting legal terminology in a multilingual society. Such issues are still prevalent in Kazakhstan, where it is particularly difficult to guarantee the quality of laws written in the state language. This study aims to answer the question of what scientific, methodological, and legal mechanisms can be used to enhance legislative drafting practises in countries with two or more official languages by using Kazakhstan as an example. The Kazakh legal terminology reflects the societal communication requirements (...) for the control of public relations. According to the findings, the current challenges of establishing a legal conceptual framework in Kazakhstan are closely connected to trends in expanding the terminological lexicon. This trend stems from neologisation, optimisation of borrowings of legal terms, and internationalisation of legal discourse. The ways to improve the legislative drafting technique are suggested based on a generalised analysis of texts in the state language of some legislative instruments of the Republic of Kazakhstan. The article offers several recommendations for specialists-translators of legal texts practising in rule-making and lawyers-specialists in legislative drafting and review. (shrink)

Law in Civil Society advances a new and comprehensive theory of how legal institutions should be reformed to uphold the property, family, and economic rights of individuals in civil society. In so doing, it offers a powerful challenge to the dominant legal theories and practices espoused by liberalism, positivism, natural law, and critical legal thought. Winfield argues against the prevailing assumptions of legal philosophers who dogmatically embrace formal or historical conceptions of law. True law, he contends, must be (...) constructed within the context of the different spheres of rights and ultimately can only exist within a civil society committed to self-determination and community. Working from these fundamental premises, he analyzes in detail a rich array of important legal issues: fair access to legal representation, the rationale for jury trials, appropriate distinctions between civil and criminal legal procedures, the controversies pitting common law versus codification and adversarial versus inquisitorial systems of trial, and the relationship between civil society and the state. Much inspired by Hegel's Philosophy of Right, Winfield's study offers the most convincing critique yet of that renowned philosopher's work and, in the process, provides a more complete and coherent conception of law than Hegel himself articulated. Provocative and highly instructive, the book should attract scholars, teachers, and students in legal and political philosophy and anyone else with an abiding interest in the foundations of Western law. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the (...) history of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the (...) enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

This book looks at the civil justice system - the courts and what they do; legal aid and other methods of providing access to justice; lawyers and their conduct; and the role of legal procedure. It also looks at the impact the civil justice system has on wider society, and its relationship with economics and commercial development. The book is largely focussed on Britain, but includes material from the USA, the Indian sub-continent, south-east Asia, and Aboriginal society (...) in Australia. (shrink)

Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil detention, (...) and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind. (shrink)

While he rejects the paradigmatic method in its historic intent, Mr. Weiss has a good deal to say about "nonassociated man" as a model for the understanding of human association and its aims. It seems fair to say that it is really this paradigmatic element which enables Mr. Weiss to support comments on the inadequacies of the analytic and empirical procedures. If the process of analysis itself gives no clue to the elements to be discovered in analysis, and if the (...) empirical investigation of social life does not provide any key to the distinction between the essential and the irrelevant, then the clue or key must lie in some concept of man. For clearly the "socially habituated ways of acting" from which this dialectical procedure sets out do not themselves provide any infallible guide to what is essential and what is irrelevant, to what is beneficial and what is inimical, in human existence. To know what society, state, culture, and civilization are in essence is to have more than a knowledge of existing social forms themselves. The features of prevailing social patterns cannot alone suggest what is normative or ideal, unless ultimately what is is to be taken for what ought to be. (shrink)

La 4e de couverture indique : "Dans cet ouvrage de référence consacré à une analyse approfondie du thème du consentement aux soins dans la pratique médicale, M.-F. Civil porte son regard de médecin et de philosophe sur les comportements de bon nombre de praticiens à l'heure actuelle plus ou moins soumis à la « mathématisation » de la médecine. Loin de se contenter d'un état des lieux complet de la question, il nous conduit pas à pas sur les chemins (...) d'une « éthique existentielle » tout à fait singulière, renvoyant à des situations pratiques de soins où délibérer avant d'agir et réfléchir à l'action déjà prise permet aux patients d'exprimer le sens donné à leur vécu dans le cadre de leur projet de vie immédiate ou future. Son approche très phénoménologique, aux côtés notamment de Heidegger et Husserl, ouvre la porte à un vaste chantier de réflexion pour tous ceux qui envisagent de se pencher sur la manière concrète d'être-au-monde en médecine comme souci pour soi et pour les autres. Ainsi ce livre interpelle les étudiants, les chercheurs, les professionnels de santé, mais également tous ceux qui ont été, ou seront, tôt ou tard, confrontés au problème du consentement.". (shrink)

Sexual Violation in Islamic Law: Substance, Evidence, and Procedure. By Hina Azam. Cambridge Studies in Islamic Civilization. New York: Cambridge University Press, 2015. Pp. xi + 270. $95.

This paper examines recent attempts to defend Rule-Consequentialism against a traditional objection. That objection takes the form of a dilemma, that either Rule-Consequentialism collapses into Act-Consequentialism or it is incoherent. Attempts to avoid this dilemma based on the idea that using RC has better results than using AC are rejected on the grounds that they conflate the ideas of a criterion of rightness and a decision procedure. Other strategies, Brad Hooker's prominent amongst them, involving the thought that RC need (...) contain no overarching concern to maximize the good are acknowledged to avoid the original dilemma, but lead to further problems of motivating and justifying RC in the absence of such a concern. The paper argues that Hooker's attempt to deal with these problems by using a 'Reflective Equilibrium plus method is unsuccessful. (shrink)

ObjectiveStress can play a role in the onset and exacerbation of psoriasis. Psychological interventions to reduce stress have been shown to improve psychological and psoriasis-related outcomes. This pilot randomised study investigated the feasibility of a brief interaction with a Paro robot to reduce stress and improve skin parameters, after a stressor, in patients with psoriasis.MethodsAround 25 patients with psoriasis participated in a laboratory stress task, before being randomised to either interact with a Paro robot or sit quietly for 30 min. (...) Raman spectroscopy and trans-epidermal water loss were measured at baseline, after the stressor and after the intervention as indexes of acute skin changes. Psychological variables, including self-reported stress and affect, were also measured at the three time-points.ResultsNo statistically significant differences between the two conditions were found for any of the outcomes measured. However, effect sizes suggest significance could be possible with a larger sample size. Changes in the psychological and Raman spectroscopy outcomes across the experimental session were found, indicating the feasibility of the procedures.ConclusionThis pilot study showed that a brief interaction with a Paro robot was a feasible intervention for patients with psoriasis, but future trials should broaden the inclusion criteria to try to increase recruitment rates. Studying people who are highly stressed, depressed or who are stress-responders may increase the power of the intervention to show effects using a longer-term intervention. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, (...) with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

This work has been selected by scholars as being culturally important and is part of the knowledge base of civilization as we know it. This work is in the public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and (...) made generally available to the public. To ensure a quality reading experience, this work has been proofread and republished using a format that seamlessly blends the original graphical elements with text in an easy-to-read typeface. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), personal (...) accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

Whyte chooses nine thinkers to illustrate this historical and evolutionary movement, including Heraclitus, Marx, and Freud, and the resulting vignettes are a synthesis of knowledge that suggest, as well, a reorientation of thought, feeling, and action for the future."--BOOK JACKET.

This paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration (...) and deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience. (shrink)

This paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration (...) and deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience. (shrink)

While philosophers usually agree that there is room for civil disobedience in democratic societies, they disagree as to the proper justification and role of civil disobedience. The field has so far been divided into two camps—the liberal approach on the one hand, which associates the justification and role of civil disobedience with the good of justice, and the democratic approach on the other, which connects them with the value and good of democracy. William Smith’s Civil Disobedience (...) and Deliberative Democracy offers a ‘deliberative’ theory, which constitutes an attractive synthesis of the two camps as it conceives of civil disobedience as a guardian of both justice and deliberative democracy. In this review essay, I first revisit the ‘problem’ of civil disobedience, examining in particular the two pillars of the case against civil disobedience as Smith depicts it, namely, the prohibition on legal disobedience established by the moral duty to comply, and the notion that civil disobedience strains the bonds of civic friendship. I suggest, contra, that the duty to comply as Smith defends it fails to be comprehensive because it is tightly bound to deliberative democratic procedures, which are involved in the making of only a portion of authoritative decisions; and, contra, that civil disobedience does not strain, but instead invigorates, civic friendship. Second, I entertain the possibility that citizens have a moral duty, not a mere right, to resist injustice. I show that Smith’s theory, in particular his account of the moral duty to comply, provides the resources to defend a general duty to resist injustice which, depending on the circumstances, can demand protesting the law or frustrating injustice. Third, I contend that Smith’s conception of the different contexts of injustice—he identifies three main ones—should be expanded to include what I call ‘official disrespect’ and ‘deliberative ignorance’. I argue that each context offers reasons to disobey the law but not necessarily in the civil manner determined by Smith. (shrink)

This article provides a study of the legal regulations of the European enforcement order and the uniform enforcement of judgments without the exequatur procedure, which have been in place between the member states of the European Union for five years already. In the Lithuanian civil procedure law it details the implementation of Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004 for creating a European Enforcement Order for uncontested claims in (...) the national law of Lithuania. The aforementioned legal act of the European Union has been implemented in Lithuania with the adoption of the Republic of Lithuania Law on the Implementation of the European Union and International Legal Acts regulating civil procedure of 13 November 2008. (shrink)

Acts of civil disobedience and conscientious objection provide valuable indications of the congruence of political outcomes with citizens’ conceptions of justice and the good. As their primary concern is substantive, their logic seems extraneous to procedural approaches to justice. Accordingly, it has often been argued that these latter condemn citizens to a ‘deaf-and-blind’ acceptance of the outcomes of agreed procedures. A closer analysis of such acts of contestation shall reveal that although, for proceduralism, the outcomes of just procedures cannot (...) be contested as unjust, they may be contested on the ground of values other than justice, such as someone’s religious/ethical allegiances. Proceduralism about justice will be thus shown to be consistent with the commitment to realising certain outcome-oriented values. (shrink)

Civility is an essential feature of health care, as it is in so many other areas of human interaction. The article examines the meaning of civility, reviews its origins, and provides reasons for its moral significance in health care. It describes common types of uncivil behavior by health care professionals, patients, and visitors in hospitals and other health care settings, and it suggests strategies to prevent and respond to uncivil behavior, including institutional codes of conduct and disciplinary procedures. The article (...) concludes that uncivil behavior toward health care professionals, patients, and others subverts the moral goals of health care and is therefore unacceptable. Civility is a basic professional duty that health care professionals should embrace, model, and teach. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides a particularly (...) detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)

In Roman civil procedure legal representatives (cognitores, procuratores) functioned together with their different assistants (advocati, patroni, oratores) who had the right to participate in the procedure together with the party and not instead of it. This article aims to show the peculiarities of the legal status of advocates, patrons, rhetoricians and other assistants of the litigants in civil procedure, the concept of a bar, as a professional corporation, presumption of its origin and mission in ancient (...) Rome, origins of state guaranteed legal aid and the institute of obligatory participation of the advocate in the procedure, the conditions of the agreement between the advocate and the client (mandatum), the peculiarities of the advocate’s fees for legal services, the responsibility of the advocate for improper execution of duties and other issues. (shrink)

The paper deals with mutual conditionality of existence between the civil society and legal state. The paper is based on the 1918-1940 doctrine of independent Lithuania, the models of the legal state and the tentative models of the civil society created at that time. In the first part of the article, the concept of the legal state is discussed. In terms of creation of the model of the legal state, M. Romeris works are of exceptional importance. It his (...) works, M. Romeris related the legal state in essence with the legal, procedural system for ensuring the lawfulness. On the basis of works of European scholars of the 19th–20th centuries, M. Romeris conducted a critical analysis of the legal state and elucidated its most significant traits. It is notable that M. Romeris was able to make a correct insight into the strategy of advancing towards the legal state. (shrink)

The parties of the criminal process, possessing the same procedural status (the suspects, indictees), must also have the same rights and obligations; however, if such “differences” as mental disability exists between them, discrimination of the rights and obligations is objectively justifiable. Otherwise, deviation from the constitutional principles of equality between the lawful state and the persons would occur.The article is aimed at substantiating the suspect’s (indictee’s) procedural capability, which is predetermined by the person’s psychic condition. The article starts with an (...) analysis of the category of the general procedural legal subjectivity, which is composed of the procedural legal capacity and the procedural capability. It is stressed that the problem with the suspect’s (indictee’s) procedural subjectivity is related to the items on acquisition of the party’s possibility (permission) to act and on the realization of this possibility (making use of the subjective rights and implementation of the legal obligations) in the course of the process. The Constitutional Court of the Republic of Lithuania has noted that, generally speaking, legal subjectivity is to be considered as a tool for defending one’s rightful interests. The criminal procedural capability, which is not legally consolidated in Lithuania, contrariwise to the civil procedural capability, is investigated further on in the article. The author submits several scientific provisions, with the help of which she reveals the content of the suspects’ (indictees’) procedural capability via the criteria of his/her intellect and will. Certain points of contact of substantiation of such procedural capability, with the doctrine of the countries, which practice both general and continental law, are indicated. (shrink)

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments (...) fail. In particular, her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not. (shrink)