Si l’on comprend le pouvoir des cours constitutionnelles comme l’influence qu’elles exercent sur les autres organes, il faut concevoir leurs compétences comme les ressources et les moyens que les autres organes peuvent mobiliser afin de limiter leur influence comme les contraintes auxquelles leur pouvoir se heurte. En Espagne, en France et en Italie, la configuration institutionnelle alloue aux cours et aux autres organes des ressources et des moyens de pressions différents. L’analyse stratégique du pouvoir de la cour constitutionnelle dans ces trois pays consiste à interpréter leur histoire au regard de l’allocation de ces ressources et moyens de pression. Elle permet d’éclairer les manières singulières dont leur pouvoir s’est établi dans les trois pays étudiés. Elle permet de comprendre la déférence du Tribunal espagnol a l’égard du législateur et son activisme envers les juges ordinaire, les rapports au contraire collaboratifs que le Conseil constitutionnel et la Cour italienne ont noués avec les juges ordinaires et les relations souvent plus conflictuelles qu’ils entretiennent avec le législateur. / If the power of constitutional courts is defined by the influence that they exercise upon other legal bodies, one must consider the review mechanisms at their disposal to exercise that power and the various ways in which other legal bodies can limit constitutional court influence. In Spain, France and Italy, the distribution of judicial review mechanisms and means of legal influence between the courts and the other legal bodies is different. The Power of Constitutional Courts gives an account of constitutional court power based on the distribution of judicial review mechanisms and other means of legal influence. It details specific ways in which constitutional courts have been able to establish their power in the three countries. It explains: the judicial deference of the Spanish Tribunal towards the legislature and its domination of other Spanish courts; the collaborative relationships of the French Conseil constitutionnel and the Italian Court have established with other courts and the more confrontational relationship they have had with the legislature.

Imagine a "new South Africa" in which, to borrow an idea from a former bureaucrat of the US State Department, history has come to an end.3 A new society in which class, race and gender are no longer necessary categories to define the social phenomenon. South Africa will be, then, the "terrestrial paradise". However, I am afraid to remind the reader that in this particular African country, history has not come to an end. This country experiences the most open and rude expression of struggle (class, race and gender), and it is difficult to foresee that in this period of transition, history or the struggle, will come to an end. Popular justice vis ei vis state justice is, perhaps, one of the best examples in which the struggle between the oppressed and the oppressors is manifested. But the popular justice that I am thinking of, is that particular experience of "people’s legality" that has emerged in South Africa since the popular revolts of the mid-1980s. It could have its origins in African (customary) traditions (Bapela, 1987), but the cultural experience that emerged during the last decade went beyond its traditionalist roots (Suttner, 1986). Thus, the distinctive element of popular justice is that it has been ingrained in a democratic movement for empowering the people. What people?4 Whose justice? In the specific context of South Africa, by people I understand the working class and working classes, unemployed and marginal sectors, and different social sectors that are struggling for equality (ie the youth, women, gays and lesbians, and others). By justice, I mean the development of a new legality that will take into consideration the many gains that have been achieved within the Western legal system of "rights and obligations" (Pashukanis, 1978:100), and that goes beyond that model in the construction of a democratic society with wider social participation. So far, it has been in South Africa’s black townships that an incipient expression of popular justice has emerged.6 The 1980s people’s courts represented a synthesis of a popular project defining its own structures of legality. State repression over these popular structures did not represent the end of the project. In contrast to other points of view that have viewed this experience as a prefigurative enterprise that did not accomplish its aims (see in general Allison, 1990), I argue that the experience of popular justice of the 1980s laid the foundation for a (long term) project leading towards a radical conception of democracy (Laclau, 1990:chapter 6). / Occasional papers (University of the Witwatersrand. Centre for Applied Legal Studies) ; v. 15

O presente trabalho versa sobre o controle da atividade do árbitro. Parte-se da premissa de que o papel desempenhado pelo árbitro na condução do processo - denominado atividade do árbitro em contraposição ao resultado dessa atividade: a resposta jurisdicional - está sujeito a desvios. A assunção dessa função pode ser viciada, já que o exercício da arbitragem somente é admitido dentro de determinados limites e condicionado ao consentimento das partes. Da mesma forma, as providências adotadas pelo árbitro no curso do processo podem apresentar inconsistências em relação às disposições legais e contratuais a elas aplicáveis. Diante disso, investiga-se de que forma tais desvios podem ser controlados, estudando-se, para tanto, (i) os órgãos responsáveis por tal controle, (ii) o momento em que tal controle pode ocorrer, (iii) os mecanismos pelos quais tal controle é admitido, e (iv) os vícios na atividade que ensejam controle. / This paper addresses the control of arbitrators role in developing arbitration. It assumes that the role of the arbitrator in developing arbitration what contrasts with the role in deciding the case is subject to irregularities. The assumption of the arbitrators function can be irregular, as arbitration is authorized only within certain limits and conditions and if the parties agree with it. Besides, the steps taken in developing the arbitration might violate legal and contractual rules applied to it. Given that, this paper deals with how such irregularities can be controlled, analyzing (i) the courts responsible for such control, (ii) the moment when this control is allowed (iii) its legal remedies, and (iv) which irregularities authorize control.

A Constituição da República, de 1988, previu em seu artigo 201, que a Previdência Social seria organizada sob a forma de regime geral, de caráter contributivo e de filiação obrigatória. Em regra, o trabalho remunerado enseja a filiação obrigatória e automática do trabalhador, assim como o surgimento de sua obrigação de contribuir para o custeio das prestações previdenciárias. Caso o empregador não registre o empregado e promova o recolhimento das contribuições previdenciárias, o trabalhador poderá ter limitada ou excluída sua proteção previdenciária. Mesmo reconhecido o vínculo de emprego no processo do trabalho, o Instituto Nacional da Seguridade Social (INSS) condiciona o aproveitamento previdenciário desse tempo de trabalho e de contribuição à apresentação de início de prova material. Essa exigência, por vezes, cria situação de contradição: há sentença trabalhista de reconhecimento de vínculo de emprego, com execução e recolhimento de contribuições previdenciárias, mas o INSS não reconhece o tempo de contribuição correspondente e nega ao trabalhador proteção previdenciária. A presente dissertação analisa se o reconhecimento de vínculo empregatício pela Justiça do Trabalho é suficiente para que se reconheça o direito do trabalhador à proteção previdenciária, partindo da premissa que o segurado empregado apenas tem de demonstrar sua filiação, não sendo prejudicado pelo descumprimento de obrigações previdenciárias de seu empregador. / Article 201 of the Brazilian Constitution of 1988 provides that Social Security is to be organized in the form of universal, obligatory and contributory regime. As a rule, paid work entails the compulsory and automatic membership of the worker, as well as the emergence of the obligation to contribute to the funding of pension benefits. If the employer does not register the employee and promote the payment of contributions, the employee may have its social security protection limited or excluded. Even if the existence of the employment contract is recognized in the labor process, the National Social Security Institute (INSS) demands the worker to present documentary evidence of the labor. If this requirement isnt met, INSS does not recognize the corresponding contributions, and denies the worker social security protection. This dissertation analyzes wether the recognition of employment by labor courts is sufficient to secure recognition of the worker\'s right to social security protection.

Eighteenth-century paintings depicting the courtly culture of Udaipur have been widely described as iconic images representing the decadent "voluptuous inactivity" of Indian princes within idyllic palaces. More recently, scholars have interpreted such paintings as royal portraits constituting meaningful assertions of political and cultural power. Yet scholars have overlooked a topographical genre of painting in which Udaipur artists not only portrayed the ruler's face but also captured the charisma of Udaipur's urban space. This dissertation examines the means by which artists pictured Udaipur and its environs for multiple patrons and mixed audiences, thereby constructing the city's memory and mapping diverse territorial claims of regional kings, courtly elites, and merchants, as well as religious institutions and the emergent British Empire. Central to this account is a corpus of large-scale paintings, scrolls, drawings, and maps made in a time period of transitions in northwestern India, marked by several new courtly and non-courtly alliances, between the decentralization of the Mughal Empire in the early 1700s and the proclamation of British rule at the Ajmer Durbar in 1832. I argue that itinerant artists practiced their arts literally and metaphorically in between empires, and thus formulated their subjective, and, at times, subversive interpretations of urbanity, territoriality, and history as they circulated among various domains. By tracing the critical role played by artistic practices in the British Political Agent James Tod's political and historical creation of "Rajasthan"--the land of kings--this dissertation challenges the dominant narrative that has mediated this region's architecture, landscape, and history. Separate chapters are devoted to shifts in artistic practice, from the painting of genealogical and poetic manuscripts to large-scale topographical paintings, relating them to tropes of praise, pleasure, and commemoration in the court's literary culture, mediation of urban memory, emergent forms of mapping, and spatial practices of processions. Udaipur's artists like Ghasi, who was also a "native" artist-assistant to Tod, the region's first British colonial agent, rendered Tod's explorations in the form of courtly processions while also adapting drafted architectural drawings for the depiction of Udaipur's princely domains. I compare the works of Ghasi and Tod, among several others, with those of artists working for the Jain religious and mercantile community. These little-studied paintings suggest the paradigmatic ways in which local artists reevaluated established pictorial genres and tropes for the purpose of mapping environs in relation to the emerging presence of the British Empire and reconfiguration of regional polities, religious sects, and mercantile communities. The visualization of South Asia's urban environs has largely been understood through the lens of the nineteenth-century British colonial archive of images and maps. Systematic studies of alternate imaginings found in contemporaneous pre-colonial Indian art have been all but absent. Addressing this lacuna, this dissertation cumulatively highlights a largely unknown visual archive of images of pre-colonial Indian cities to examine how both Indian and British artists imagined their urban environs for varied patrons. It contributes to a growing body of scholarship on the importance of affect in understanding epistemic practices and the nature of political, cultural, and artistic transitions in the long eighteenth century in the Indian subcontinent.

This dissertation uses the case of Pakistan to argue that the compatibility of shari'a and democracy depends on the design of institutions through which Islamist moral arguments are processed and which shape their interaction with liberal detractors. Instead of extrapolating Islamist intentions from theoretical tracts deemed canonical or from their official statements, this dissertation examines the link between ideas and institutions by mining a wide-range of English and Urdu-language texts from Pakistani courts, parliament, law journals, the advisory Council of Islamic Ideology and Women's Status Commissions, transnational rights advocacy NGO and Islamist publications, newspapers and TV debates, and 40-years of articles on democracy and state Islamic lawmaking from two leading madrassa journals. An analysis of 3 case studies of Islamic lawmaking reveals that the judiciary has been able to foster "authentic deliberation" between liberals and Islamists (which Guttman and Thompson define as reciprocal reasoning with civility and respect), leading to the moral accommodation of Islamists in the constitutional democratic order as well as steady advances in constitutionally-guaranteed fundamental rights. However, deliberation through political institutions - a legislature dominated by the executive branch, which has been alternately controlled by military dictators and civilian heads of internally undemocratic political parties - has led groups in power to pass desired laws without giving the minority side reasons internal to their moral framework, leading the losing side to declare the law "un-Islamic" and to later collaborate with military rulers to attain their desired change. By adopting the lens of "internal" vs. "external" reasoning to analyze the moral deliberation between liberals and Islamists during episodes of Islamic lawmaking, which is used by scholars of moral and political theory, particularly in the deliberative democracy tradition, I am able to suspend judgment about the content of Islamist positions. This allows me to show that their moral critique of liberalism is directed at the kind of liberalism advocated by transnational rights NGOs, which John Gray has described as the conception of liberalism as a "rational consensus on values," and that they have been the most ardent champions of what Gray has termed "modus vivendi" liberalism and which is indeed the arrangement embodied in Pakistan's constitutional and legal system, which has a dual commitment to shari'a and individual rights. Particularly, from 1978-85, there was a major structural shift in judicial reasoning when the mechanism of "Islamic judicial review" was introduced through shari'a courts, which were empowered to strike down laws as un-Islamic on citizen petition, or on their own initiative, and which were staffed by a minority of `ulama and a majority of common law judges, who were compelled to reason within the fiqh tradition (and depart from consensus-based opinions of the fuqaha only as a last resort, if there was no way to reconcile them with modern circumstances). From the accounts of legal scholars, the constitutional role granted to shari'a since the 1980s has led to a liberalization of colonial-era laws, while the judiciary has continued its steady expansion of women's rights in Muslim divorce law and in areas of law that do not entail a direct conflict with fiqh-based provisions. Superior court judges have pursued this liberalism through "creative compromise;" in public statements they have affirmed the constitution's commitment to gender equality but when dealing with the fiqh tradition, they pursue gender equality as a legal effect (pragmatism) rather than as a premise on the basis of which the fiqh tradition should be "reconstructed." While the latter is a Muslim modernist position and has been the demand of transnational rights advocacy NGOs since the 1980s, "gender equality" was never recognized as a premise in the fiqh tradition, much like other moral and religious traditions which posit the family as the basic social unit, and derive the mutual rights and duties of men and women from their role in the family. Contrary to the common representation of Islamists, in-depth evidence from Pakistan, especially in the last decade when judicial and media independence increased, shows that the main `ulama and Islamist electoral parties have shown flexibility in their positions, sometimes appropriating long-standing demands of women's rights campaigners for their own electoral platforms (to prove that they are women-friendly), while western-funded rights advocacy NGOs have maintained their original position that gender equality must be used as a premise to re-frame all laws, including fiqh-based laws.

Submitted by Maria Aparecida (cidazen@gmail.com) on 2017-05-04T14:51:52Z No. of bitstreams: 1 Gleydsson Carvalho.pdf: 616875 bytes, checksum: f85254f5f54b866594d7aed68e1256e5 (MD5) / Made available in DSpace on 2017-05-04T14:51:52Z (GMT). No. of bitstreams: 1 Gleydsson Carvalho.pdf: 616875 bytes, checksum: f85254f5f54b866594d7aed68e1256e5 (MD5) Previous issue date: 2016-04-29 / This paper attempts to analyze the effectiveness of the enforcement of the criminal transaction institute in the Special Criminal Court Imperatriz-MA. Therefore, we seek to make an analysis of the historical context in which it gave the appearance of Law No. 9,099 / 95, the inaugural consensual justice in the Brazilian criminal law, as well as a study of the main principles underlying the functioning of the Courts. He studied the institution of criminal transaction in a more detailed way, trying to conceptualize it and indicate some foreign institutes that served him for inspiration. It is also its legal nature, is mere discretion of the prosecution, or subjective right of the accused. At the end, we analyze data collected about compliance with the criminal transaction agreements indicated locus. It was used for quantitative and qualitative research, mainly based on literature review and case study. / O presente trabalho intenta analisar a efetividade do cumprimento do instituto da transação penal no Juizado Especial Criminal de Imperatriz-MA. Para tanto, procura se fazer uma análise do contexto histórico no qual se deu o surgimento da Lei nº 9.099/95, inauguradora da justiça consensual no direito penal brasileiro, bem como um estudo dos principais princípios que permeiam o funcionamento dos Juizados. Estudou-se o instituto da transação penal de forma mais detida, procurando conceituá-lo, bem como indicar alguns institutos estrangeiros que lhe serviram de inspiração. Trata-se também de sua natureza jurídica, se mera discricionariedade do Ministério Público, ou se direito subjetivo do acusado. Ao final, analisa-se dados coletados quanto ao cumprimento dos acordos de transação penal no locus indicado. Utilizou-se de pesquisa quanti-qualitativa, baseada principalmente em levantamento bibliográfico e estudo de caso.

Depuis les années 1960, les états européens font face à l’arrivé d’un grand nombre de musulmans dans leurs territoires. l’application de la shari‘a en europe devient, donc, une question centrale.dans les systèmes juridiques européens, le règles islamiques sont appliquées pour des reaisons définies externes et internes. elles coexistent dans les espaces accrédités à la justice alternative connue par l’acronyme adr- alternative dispute resolution.Le recours a la justice privée, au royaume-uni, sous les auspices des normes islamiques, et ses effets en termes géopolitiques, font l’objet de cette recherche.un processus d’institutionalisation des procedures adr conformément aux normes islamiques a lieu au royaume-uni. institutions islamiques adr se présentent, agissent et sont perçues en tant que tribunaux de justice islamique. du coup, dans le débat elles sont appelées sharia courts. en revanche, ce travail de thèse n’utilise pas l’expression pour indiquer l’offre entière de justice islamique au royaume-uni. elle se réfère a des institutions islamiques qui ont des caractéristiques précises.quand ces organismes dépassent les limitis imposées par le droit interne, on assiste à un conflit de juridiction, au sens geopolitique, où l’offre de justice des tribunaux nationaux est représentée en termes antagonistes à celle des sharia courts. depuis 2008, le conflit continue de croître à travers una série de moments significatifs, de plus en plus d’acteurs et de représentations.ce qui ressort de l’analyse menée est une application du droit islamique par les sharia courts qui cause un changement entre les systèmes de valeurs concernées en direction d’un éloignement entre eux-ci. / SINCE THE 1960s, EUROPEAN STATES ARE CONFRONTED WITH THE ARRIVAL OF A GROWING NUMBER OF MUSLIMS. ACCORDINGLY, THE APPLICATION OF SHARI‘A LAW IN EUROPE WAS MEANT TO BE A CENTRAL ISSUE.IN EUROPEAN LEGAL SYSTEMS ISLAMIC RULES APPLY FOR BOTH EXTERNAL AND INTERNAL REASONS. THEY COEXIST ALONGSIDE EACH OTHER AS THE STATE MAKES ROOM FOR THE OPTIONAL CIVIL LAW. THIS IS THE CASE WITH THE ALTERNATIVE DISPUTE RELOSUTION, BEST KNOWN BY THE ACRONYM ADR.ADR ENABLES PARTIES TO CHOOSE THE APPLICABLE LAW, PROVIDED THAT THE REQUIREMENTS LAID DOWN IN LAW ARE MET. THE ROLE OF ISLAMIC ADR IN BRITAIN AND ITS GEOPOLITICAL EFFECTS IS THE TOPIC OF THIS RESEARCH.A PROCESS OF INSTITUTIONALIZATION OF ISLAMIC ADR HAS BEEN TAKING PLACE IN BRITAIN SINCE THE 1980s. ISLAMIC ADR INSTITUTIONS ACT AS COURTS OF JUSTICE. FURTHERMORE, THEY ARE PERCEIVED AS SUCH BY BOTH MUSLIM COMMUNITIES AND NON-MUSLIM COMMUNITIES. INDEED, THEY ARE OFTEN REFERRED TO AS SHARIA COURTS. IN CONTRAST, THIS WORK USES THE EXPRESSION ‘SHARIA COURTS’ TO ONLY INDICATE ISLAMIC INSTITUTIONS HAVING SPECIFIC REQUIREMENTS. WHEN THESE ADR INSTITUTIONS BREAK THE LIMITS SET BY THE LAW, A CONFLICT OF JURISDICTION OCCURS. IT IS TO BE UNDERSTOOD IN GEOPOLITICAL SENSE, BECAUSE JUSTICE GUARANTEED FROM DOMESTIC COURTS IS DEPICTED AS ANTAGONIST TO THE JUSTICE GIVEN BY SHARIA COURTS.THE CONFLIT STARTED IN 2008 AND HAS CONTINUED TO GROW OVER THE YEARS, BY BRINGING WITH IT THE EMERGENCE OF SEVERAL OPPOSING ACTORS AND REPRESENTATIONS.THE RESEARCH UNDERTAKEN SHOWS THAT THE APPLICATION IF ISLAMIC FAMILY RULES BY SHARIA COURTS CAUSES A CHANGE IN THE RELATIONSHIP BETWEEN THE VALUE SYSTEMS AT STAKE, IN THE DIRECTION OF A MUTUAL DEPARTURE.

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror misconduct under specific circumstances. Participants (N = 148) in an online survey read one of six vignettes relating to a mock court case. These vignettes either presented clear or confusing information, and included one of three types of juror misconduct witness [googled a term, talked to their spouse about the case, or went to the crime scene]. Neither the severity of the juror misconduct nor the clarity of expert testimony significantly affected participant’s perceptions of the behavior. However, participants Right Wing Authoritarianism and Belief in a Just World scores did affect their likelihood of reporting the juror misconduct as well as influenced their report of whether they would engage in these behaviors.

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its origin and assessing why this standard was permitted to continue to be a cornerstone of the Anglo-American judicial system.