Includes bibliographies. / My thesis attempts, in the first instance to ascertain whether Islamic legal theory (usul) has made provisions for the accommodation of changing social exigencies. If such provisions have been made, are they adequately employed to achieve optimum benefit? In the second instance, the Islamic judicial process of discovering and formulating the Divine law and the elements that contribute towards it is subjected to scrutiny to ascertain whether it is proceeding according to the general provisions made for it in terms of the principles of the law or, whether this crucial process has since been abandoned, corrupted, distorted or replaced. I have chosen four representative classical works of usul al-fiqh on which to base my assessment of usul vis-a-vis changing social exigency. One of the works is a Shafi i exposition; the second two are Hanafi expositions, and the fourth is a general exposition not located in a particular legal school (madhhab).After illustrating the inherent leeways to be found in the legal propositions together with the inherent scope accompanying the notions of maslahah (utility) and urf (prevailing norms), I proceed to evaluate the extent to which these leeways are employed in the actual judicial process of two of the world's most authoritative judicial institutions namely; al-Azhar (Cairo) and Darul Ulum (Deoband). To do this, I analyze the fatwa (judicial decree) on organ transplantation from both these institutions. My analysis is not aimed at the outcome of the fatwahs, but rather at the processes involved in arriving at the particular verdicts. In my conclusion I point to the ample provisions made by legal theory to contend with any social exigency and to the tragic neglect of their employment in the application of the law to novel situations. It is, therefore, the inconsistency between the provisions of legal theory and the absence of their application in the actual judicial process that has contributed to the current tension between law and social change.

No description available.

This thesis asks the following fundamental question: to what extent can economic and social rights be made effective through law? Because this question touches at once upon the effectiveness of these rights and on their status as norms of positive law, attempting to answer it requires first, an openness to other disciplines, and subsequently, to the question of the respect and control of these norms, namely that of sanction. From the outset, a preliminary and multidisciplinary analysis of the issue of contemporary poverty hints at an undeniable deviation with "pure legal theory". Moreover, economic and social rights are becoming more and more tangible in national legislation and more frequently invoked before the court (who is turn are showing a growing openness). 'Hard law' does have a place in this implementation, notably a symbolic one. Thus, the first part is dedicated to the determination of the role of 'hard law' as well as to the relevance of judicial activism. Given the limitations of 'hard law', the second part examines the issue of alternate courses of State action as opposed to any other demands for rights. Two forms of 'soft' and 'reflexive' law will then be examined in the interest of rendering economic and social rights effective: respectively from within the State, and from outside its framework. First, strategic planning (accompanied by outcome-based management) may serve to coordinate the State apparatus in the struggle against poverty. In what concerns the role of law at a societal level and in the context of a complex society, societal guidance will be preferred to impose strategic planning. In this way, it will be possible to shed light on other forms of sanction, which may be complimentary to legal ones. Finally, it is necessary to establish certain control and follow-up mechanisms of this category of rights, more relevant and innovative in order to garner a greater effectiveness of economic and social rights.

The thesis is divided into two sections. Section 1 explores the psycho-social and legal constructions of family, parenting and children that have influenced judicial decision-making in parenting disputes following separation and divorce. Particular attention is paid, first, to the circumstances surrounding the shift from paternal to maternally-based presumptions about the parenting of children; and second, to the more recent and somewhat puzzling shift to a presumption of gender neutrality. The extent to which fault has continued as a less overt decision-making criterion is also considered. In Section 2, judgements in recent closely contested parenting cases in the Family Court of Australia are analysed as contemporary socio-legal narratives. A systematic, in-depth examination of a heterogeneous sample of publicly accessible cases revealed that gender-based assumptions continue to dominate judicial thinking about parenting and family structure. In particular, it was found that outcomes that favoured mothers correlated with perceived evidence of conformity to a maternal stereotype of self-sacrifice on behalf of the child(ren). Outcomes favouring fathers usually resulted from situations in which mothers were judged to fall short of these stereotyped expectations. Fathers� roles, even in cases in which their applications were successful, generally continued to be equated with breadwinning and support. Their capacities as nurturers to their children were either not mentioned or treated with scepticism. In the light of the findings, tensions between continuing gender-based roles in families, public attitudes to parenting and preferred family structure, and recent changes in our scientific knowledge base regarding gender and parenting are reviewed. Implications of the persistence of the breadwinning/nurturing dichotomy both within the Australian culture and family court judgements are discussed. Particular attention is drawn to the impact of the confused circumstances in which gender-neutral parenting principles came about in the 1970s.

published_or_final_version / Sociology / Master / Master of Philosophy

The thesis is divided into two sections. Section 1 explores the psycho-social and legal constructions of family, parenting and children that have influenced judicial decision-making in parenting disputes following separation and divorce. Particular attention is paid, first, to the circumstances surrounding the shift from paternal to maternally-based presumptions about the parenting of children; and second, to the more recent and somewhat puzzling shift to a presumption of gender neutrality. The extent to which fault has continued as a less overt decision-making criterion is also considered. In Section 2, judgements in recent closely contested parenting cases in the Family Court of Australia are analysed as contemporary socio-legal narratives. A systematic, in-depth examination of a heterogeneous sample of publicly accessible cases revealed that gender-based assumptions continue to dominate judicial thinking about parenting and family structure. In particular, it was found that outcomes that favoured mothers correlated with perceived evidence of conformity to a maternal stereotype of self-sacrifice on behalf of the child(ren). Outcomes favouring fathers usually resulted from situations in which mothers were judged to fall short of these stereotyped expectations. Fathers� roles, even in cases in which their applications were successful, generally continued to be equated with breadwinning and support. Their capacities as nurturers to their children were either not mentioned or treated with scepticism. In the light of the findings, tensions between continuing gender-based roles in families, public attitudes to parenting and preferred family structure, and recent changes in our scientific knowledge base regarding gender and parenting are reviewed. Implications of the persistence of the breadwinning/nurturing dichotomy both within the Australian culture and family court judgements are discussed. Particular attention is drawn to the impact of the confused circumstances in which gender-neutral parenting principles came about in the 1970s.

published_or_final_version / Urban Planning / Master / Master of Science in Urban Planning

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-04-06T12:55:21Z No. of bitstreams: 1 Daniel Aquino de Sousa.pdf: 1147788 bytes, checksum: 35d2ba1efe70c81178a22ae247a38b0e (MD5) / Made available in DSpace on 2018-04-06T12:55:21Z (GMT). No. of bitstreams: 1 Daniel Aquino de Sousa.pdf: 1147788 bytes, checksum: 35d2ba1efe70c81178a22ae247a38b0e (MD5) Previous issue date: 2018-03-09 / The current study uses the proposals that aim to reduce the penal age as a base for further analysis of criminal law theories that influences the criminal policies currently adopted by the brazilian legal system. It starts with the premise that brazilian constitutionalism adopts within it the bases of a guarantism theory, as outlined by Luigi Ferrajoli, where the very existence of the criminal law is justified by the need for general prevention within a guarantor and minimum model. Then, based on the fact that criminal laws and regulations are increasingly rigid and emergency, considered the only means of combating the crime rates constant growth, the research turns itself to study the Law and Order moviments, emphasizing the tendencies of criminal policies based on social exclusion as a characteristic of the developed liberal societies, under the pretext of maintaining order, especially the proposals of Ralf Dahrendorf, without neglecting the criticisms of David Garland, Jock Young and Douglas Husak. It is from this observation that the reflections on the insertion of an Enemy Criminal Law practices within the Brazilian criminal system emerges, as diagnosed in one of Gunther Jakobs phases. Finally, it is tried to understand if the Amendment Proposals to the Constitution that aim to reduce the penal age follow a stigmatizing and discriminatory tendency, based on analyzes of comparative law, statistical data, norms inside the Child and Adolescent Statute, the custodial sentence purpose and a Symbolic Criminal Law / O estudo em voga utiliza as propostas que objetivam a redução da idade penal como base para aprofundar as análises das teorias de direito penal que influenciam as políticas criminais adotadas atualmente pelo ordenamento jurídico brasileiro. Parte-se da premissa de que o constitucionalismo brasileiro adota em seu interior as bases de uma teoria garantista, na forma delineada por Luigi Ferrajoli, onde a própria existência do Direito Penal justifica-se pela necessidade de prevenção geral dentro de um modelo mínimo e garantista. Em seguida, a partir da constatação de que as leis e normas penais estão cada vez mais rígidas e emergênciais, tidas como único meio de combate ao constante crescimento dos índices de criminalidade, a pesquisa volta-se aos estudos que tratam dos movimentos de Lei e Ordem, destacando as tendências das políticas criminais de exclusão social características das sociedades liberais desenvolvidas, a pretexto de manutenção da ordem, com destaque para as proposições de Ralf Dahrendorf, sem deixar de lado as críticas de David Garland, Jock Young e Douglas Husak. É dessa constatação que emergem as reflexões sobre a inserção de práticas próprias de um Direito Penal do Inimigo no interior do sistema criminal brasileiro, como diagnosticado em uma das fases de Gunther Jakobs. Por fim, busca-se entender se as Propostas de Emenda à Constituição que visam reduzir a idade penal seguem uma tendência estigmatizante e discriminatória, com base em análises de direito comparado, de dados estatísticos, das normas postas no Estatuto da Criança e do Adolescente, dos fins da pena privativa de liberdade e de um Direito Penal Simbólico

"October 2008" / Thesis (PhD)--Macquarie University, Division of Society, Culture, Media and Philosophy, Dept. of Sociology 2009. / Bibliography: leaves 273-293. / Introduction -- Patterns of corporate activity as patterns of corporate dominance: legal, organisational, and economic features of corporations -- Representations of corporate dominance in insidious injuries -- The legal basis of corporate dominance: History of the corporation -- Legal individualism and corporate personhood -- Theories of the corporation -- The legal regulation of corporations - corporate liability laws -- Conclusion. / Corporations are no longer simply a type of business structure; they are dominant social institutions. As institutions, corporations are archetypes of contemporary complex social organisation and should, therefore, be a central concern for sociology. Yet with few notable exceptions, sociologists have failed to address their increasingly dominant position in contemporary societies. In this thesis I argue the importance of a renewed sociological interest in corporations. This must acknowledge, but go beyond, the political-economic outcomes of corporations to address the profound consequences of the legal foundations of the corporate form. Corporations are created and regulated by legal doctrine; it is only with a legal mandate that corporations are able to act as employers, suppliers and investors. On this basis, I claim that any understanding of corporate dominance and its effects must commence with an appreciation of the laws that enable the corporation to exist and operate. -- While contributing significantly to wealth creation, corporate dominance also increases the potential for harm to occur to individuals and communities who fall within a corporation's scope. The contemporary proliferation of industrial illnesses is a prime example of this and is examined through a case study of the operations of an Australian asbestos corporation, James Hardie. This case study is timely and unique in its specification of the link between corporate activity and law in contemporary society. -- I argue that corporate activity such as that in the case study is enhanced and legitimated by the legal description of the corporation that assigns to it the capacities of a human individual through corporate legal personhood. Corporate personhood is examined as an example of the legal individualism endorsed in liberal common law countries. By exploring accounts of corporate structure, decision-making and work processes, I explain how the individualised description of the corporation is at odds with its collective realities; the largest and most successful corporations are collectives of human and monetary resources. -- In light of this, I question the extent to which the effective regulation of corporations can be achieved within existing legal frameworks. Building upon research into workplace health and safety in the United Kingdom, the regulation of workplace deaths in Australia is examined to demonstrate the various approaches to regulating corporations and to identify their shortcomings. This is a striking example of the problems law faces in regulating corporations by virtue of its individualistic design. -- The thesis concludes with an affirmation that sociology needs to grapple with issues of corporate activity and that an understanding of the legal basis of the corporation is the foundation of such studies. / Mode of access: World Wide Web. / 295 leaves