Il tema dell'inculturazione del diritto canonico è analizzato in rapporto al problema della resa operativa del diritto attraverso i processi di interpretazione e di applicazione della norma; in particolare, tali processi sono esaminati sotto il profilo della loro funzione trasformatoria del diritto vigente in diritto vivente, inteso come il diritto emergente dall'impatto della norma generale e astratta con la realtà sociale. Tale categoria concettuale è vagliata quanto alla sua compatibilità con la struttura ed i principi fondamentali dell'ordinamento ecclesiale. A tal fine,ci si sofferma sulla possibilità e sulle condizioni di legittimità di un'interpretazione creativa del diritto ecclesiale; in particolare, come si possa garantire la permanenza e l'integrità degli indefettibili valori ecclesiali all'interno di un diritto vivente prodotto da un'interpretazione creativa del dato giuridico ecclesiale. Successivamente, si esamina l'influenza che l'elemento culturale e locale può giocare in riferimento al processo di interpretazione del dato divino-rivelato, nel conformare l'orizzonte di valori e le aspettative di giustizia dei soggetti che vi concorrono, e pertanto nel configurare il diritto canonico effettivamente vivente nelle diverse comunità costitutive della Chiesa universale, avuto altresì riguardo all'incidenza che il riconoscimento di un diritto vivente culturalmente orientato ha sulla comprensione della cattolicità della Chiesa, come la capacità di questo ordinamento di conglobare il maggior numero possibile di componenti antropologiche e valoriali differenziate senza disgregare la propria identità e unità di fondo. / Inculturation of canon law is regarded under the perspective of the processes of interpretation and application through which the norm becomes operating. These processes are examined in particular under the profile of their transforming function of legally binding law in 'living law', understood as the law emerging from the impact of a general and abstract rule with concrete social reality. The notion of 'living law' is questioned as to its compatibility with the structure and basic principles of the ecclesial juridical order. To this purpose it is examined if and to what extent canonical interpretation can be defined a creative act, and how it could be granted the integrity of constitutional ecclesial values within a living law issued from a creative interpretation of ecclesial laws. Then it is examined the role played by the cultural horizon of an ecclesial community in the interpretation of the divine Revelation's contents, thus shaping the canon law actually living in it, and the incidence that this culturally orientated living law has on the comprehension of the catholicity of the Church, from the viewpoint of its capability to settle the widest range of anthropological experiences and human values without losing its fundamental identity and unity.

L’instauration de la question prioritaire de constitutionnalité (QPC) conduit à repenser les rapports entre les juridictions suprêmes : Conseil constitutionnel, Cour de cassation et Conseil d’Etat. Elle met aussi en lumière les spécificités de la fonction de juger – et notamment l’exercice, par le juge, de son pouvoir d’interprétation. De fait, en créant un lien direct entre les trois juridictions suprêmes, la QPC brouille les frontières de leurs compétences respectives et les place dans une situation d’interdépendance qui impacte directement l’étendue et l’exercice de leur pouvoir herméneutique. La QPC s’avère donc être le vecteur – c’est-à-dire à la fois le support, et le révélateur – d’une concurrence très vive entre les interprètes. De ce fait, il n’est pas possible de considérer qu’un juge détient le « dernier mot » pour l’attribution d’un sens à la loi ou à la Constitution – ces deux textes étant conjointement et simultanément interprétés par l’ensemble des juges du système. Le contrôle de constitutionnalité a posteriori met ainsi en lumière l’existence d’un processus interprétatif à la fois continu et inachevé. L’étude de ce contentieux permet donc de mieux comprendre le travail herméneutique effectué par le juge – en donnant l’occasion de forger le concept d’interprétation normative. / The introduction of the The Priority Preliminary Ruling on the Issue of Constitutionality (QPC) leads to rethinking the relations between the supreme jurisdictions : Constitutional Council, Court of Cassation and Council of State. It also highlights the specificities of the judging’s function- and in particular the exercise by the judge of his interpretation’s power. In fact, by creating a direct link between the three supreme jurisdictions, the QPC blurs the boundaries of their respective jurisdictions and places them in a situation of interdependence that directly impacts the extent and the exercise of their hermeneutical power. Therefore, the QPC turns out to be the vector - that is to say, both the medium and the developer - of a very lively competition between the performers. Thereby, it is not possible to consider that a judge has the "last word" for the attribution of a meaning to the law or the Constitution - these two texts being jointly and simultaneously interpreted by the whole judges of the system. The QPC thus highlights the existence of an interpretive process that is both ongoing and uncompleted. The study of this litigation so lets understand the hermeneutical work done by the judge - by giving the opportunity to forge the concept of normative interpretation.

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.