La construcción de una democracia respetuosa de los derechos humanos. reflexiones a partir del modelo constitucional adoptado por la república de timor oriental

This paper proposes to show the benefits of adopting a constitutional model that incorporates fundamental rights and judicial review systems in order to build a democracy respectful of human rights. Such goal will be achieved analyzing the constitutional model adopted by the young republic of East Timor. To that end, first we will explain briefly the political background and the roots of the Constitution of this country. Further on, we will present some of the characteristics of the constitutional model of East Timor. Specifically, we will show that this Constitution: i) it is not made up only of rules, but also includes values and principles which are directly applicable, and works as validity standards for the whole legal system; and ii) it recognizes some legal contents -related to human rights- that limit the rules, decisions and actions made by authorities and citizens. Finally, we will point out some challenges that this constitutional models usually face when reviewing authority decisions.     

Conception and the Irrelevance of the Welfare Principle

This article challenges the assumption that their future children's welfare is a relevant consideration when deciding whether to provide a person with assisted conception services. It does not argue that infertility treatment ought to be available as of right. Rather, this article's proposal is that section 13(5) – which specifies that no-one shall receive assistance with conception unless account has first been taken of the welfare of any child who might be born – should be deleted from the Human Fertilisation and Embryology Act 1990. Extending the 'welfare principle' to decisions taken prior to a child's conception is shown to be unjust, meaningless and inconsistent with existing legal principle.     

Gender,race, bias and perspective: OR,how otherness colours your judgment

This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers’ membership of the jurisprudential community is still marked by ‘otherness’. The argument draws upon my ongoing interest in the law's concern with the concepts of ‘objectivity’, ‘neutrality’ and ‘perspective’. I argue that the legal system is inherently suspicious of ‘otherness’ and most specifically so when ‘others’ occupy positions of ‘judgement’. The consequence is to render decisions made by ‘otherised’ judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of ‘bias’ or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of ‘the judge’ is seen as a limit on their ability to be ‘impartial’. The examples used range across many jurisdictions, from Australia, Canada, the US and a challenge to the impartiality of a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY).     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

Aligning physician decision-making with the goals of health care organizations: are there any lessons from law firms?

In order to achieve efficiency in the delivery of health care services, it is essential to align more closely the behavior of physicians with the goals of the health care organization with which they are affiliated. Achieving alignment presents a number of challenges, including legal constraints, a long tradition of physician independence, a tendency for physicians to become involved in procurement decisions, and a scarcity of comparative effectiveness data that could serve as a basis for treatment protocols and purchasing decisions. The article discusses these challenges and suggests some partial solutions. In addition, it compares the incentives that affect physicians in health care organizations and partners in law firms and suggests that there may be some lessons that health care organizations can learn from the firms.     

An economic approach on countering the misuse of the right to challenge judges: an experiment

Parties can challenge a judge (request a recusal) when they have reasons to believe that a judge is not impartial. In practice this procedure is sometimes abused by lawyers who, for example, want to delay proceedings. Countries have taken different measures to deter the improper use of the procedure to request a recusal, like fines for dismissed requests, or immediately dismissing evidently unfounded requests. In a laboratory experiment we examine the effects of a summary review whether a challenge is evidently unfounded, with or without fines. We find that a review without fine improves legal protection in practice as well as efficiency by reducing unfounded challenges and increasing challenges that have a substantial chance of success. Overall the number of challenges declines. With a fine, challenges decline, but also legal protection.     

公众意见在裁判结构中的地位

从裁判依据的类型分析,公众意见只能作为一种事实依据,参与个案裁判。在常规案件中,公众意见作为一种准用的辅助性依据,可以通过弱的裁量成为合理化判决结论的说明性事实。在遇有法律漏洞的疑难案件中,与社会性主张相一致的公众意见,如果耦合法律体系中的法律原则或基本权利规范,可以籍由强的裁量充当个案推理的运作性依据,成为非常情形中正当化个案规则创制的立法性事实。在日趋多元化和复杂化的转型中国,法律系统必须在稳定性和灵活性、普遍正义和个案正义之间寻求一种平衡;判断公众意见的个案裁判地位,同样需在辅助性依据或运作性依据、说明性事实或立法性事实之间寻求一种平衡。     

归责何以可能:人工智能时代的自由意志与法律责任

自由意志是归责的基础,以基因编辑技术为代表的基因工程、医疗性人工装置和人工智能构成了对自由意志的根本挑战,对法律责任的认定影响甚大。这些挑战是根本性的,而不是工具意义上的。它们在法哲学上可以分为两个方面:一是现实的挑战,即以基因工程和弱人工智能为代表的新兴科技引发了人类在自由意志方面的争议;二是未来的终极挑战,即强人工智能体被认为具有和人一样的自由意志,能够成为法律主体,从而承担完全的法律责任。现实的挑战构成了责任承担的新的"宽恕"条件;而未来的挑战也值得认真对待,因为自由意志不仅关乎责任,也关乎人性尊严。     

Legal and ethical considerations of biometric identity card: Case for Mauritius

The highly connected nature of the current era has raised the need for more secure systems, and hence the demand for biometric-based authentication methods. In 2013, the Mauritian Government invested massively in the collection of data, and implementation of the national biometric identity card scheme. The latter has suffered a number of contestations among the population, and several cases were consequently filed at the Supreme Court of Mauritius to oppose the use of this biometric card. The main concern was the collection of biometric data which posed threats to the privacy of individuals. Additionally, the collection and retention of biometric data lead to security issues. In this paper, the challenges with respect to the usage of the biometric card are analysed. The laws governing data protection are discussed, together with the legal framework used for data collection and retention. Following the court decisions, several amendments have been made to the existing laws in order to cater for the usage of biometric data for the public interest. Finally, recommendations are made with regards to a legal framework which will enhance the security of biometric data, and eventually encouraging public acceptance of this biometric identification system.     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.     

Judicial Review and Deliberative Democracy: A Circular Model of Law Creation and Legitimation

In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication.     

Involuntary administration of medication in the community: the judicial opportunity

In a state in which patient refusal of antipsychotic medication in all nonemergency situations must be respected, lawyers and psychiatrists in western Massachusetts have employed probate court decisions as involuntary outpatient treatment orders. The legal, administrative, and clinical issues in sustaining court-ordered outpatient treatment are discussed by focusing on case examples demonstrating some successes, some challenges, and some failures. Judicially sanctioned involuntary outpatient treatment presents an alternative model to statutorily based outpatient commitment.     

论法律政策在侵权法因果关系判断中的作用——以英美侵权法之最近原因的分析为中心

法律政策在侵权法上因果关系判断中起到怎样的作用?在英美法系对因果关系考察的二分法下,最近原因考察与法律政策考量密切相关.最近原因的判断标准中渗透着政策考量的因素,具体而言,行政管理、价值层级、环境、责任保险等政策因素影响着最近原因的判断,尤其体现在与有过错、救助等特殊类型案件中.法律政策在因果关系判断中的作用,深层次上反映了对侵权法上因果关系本质的不同看法.     

"I want you to listen to my side of this": is there a role for mediation early in the health care complaints process?

The resolution of disputes that arise out of the provision of health care services has historically taken place at an institutional level, with the hospital administrative unit conducting the process, or through the legal system with the parties traversing the relevant courts and tribunals. Increasingly, the wide range of decisions which must be made in relation to the delivery of patient and client care and the broad scope of variations in expectations as to what a health service is capable of delivering, are providing fertile ground for conflict. This column considers the potential role of mediation as an early intervention strategy to resolve health care disputes.     

Mapping current issues in administrative justice: austerity and the ‘more bureaucratic rationality’ approach

This article critically reviews recent developments in the administrative justice system; in particular, it considers three key themes: improving initial decisions; administrative review; and the future of tribunals. In each of these areas, some aspects of administrative justice work well, but austerity has presented acute challenges in ensuring the fair and just treatment of people through restrictions upon legal aid; the withdrawal of some appeal rights; and the expansion of administrative review. Consequently, the system is moving away from a ‘legal’ model of administrative justice to the ‘bureaucratic rationality’ model, which focuses upon accurate and efficient implementation. However, the reality does not correspond with the goals of the model. Rather than accurate and efficient implementation of policy, what we find is poor decision-making made by junior officials with insufficient quality controls. Digitising tribunals may have potential benefits in terms of increased accessibility. Nonetheless, the prospects for administrative justice are weak.     

Modeling the Evolution of Legal Discretion.An Artificial Intelligence Approach

Abstract. Much legal research focuses on understanding how judicial decision‐makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision‐making. We observe that discretionary decision‐making can best be modeled using three independent axes: bounded and unbounded, defined and undefined, and binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

Googled justice: an examination of the citation of Internet sources in judicial opinions in Uganda

Search engines like Google have made it incredibly easy to access vast amounts of information with little effort. Many lawyers now prefer to go online for their legal research. Lawyers are citing online sources to establish legal and factual positions in their submission briefs to court and, in turn, judges are citing them in their opinions. Judges are also conducting online research to better understand the complexities of disputes before them. This paper examines the challenges arising from the citation of online sources in judicial opinions in Uganda. It argues that while there are significant benefits to relying on Internet sources, there are also challenges like inaccuracy of online information, excessive reliance on non-legal sources and inaccessibility of some online sources. It concludes with recommendations for best practices that can be adopted by the Ugandan courts in dealing with these limitations when citing online authorities.     

道德难题与立法选择——法律道德主义立场及实践检讨

传统的法律道德主义者认为国家对道德事务享有判断权,并且在必要时为了保护社会可以动用法律限制公民的道德自由。然而该理论却无法回应"道德民粹主义"和"经验主义"的批评,在此基础上发展出来的新法律道德主义理论尽管精致,但仍然面临着"帕累托挑战"和"权衡难题"。有关法律道德主义的主要争议并不在于道德是否能够入法,而在于其入法的限度和具体方式。中国的立法、执法及司法的各阶段中均存在着不尽相同的法律道德主义形态,隐藏于其背后的"道德的法律强制"值得警惕,我们无法一劳永逸地确定出一条自由社会的道德底线,而注重各种价值之间的权衡却实属重要。     

The Challenge of Universal Norms: Securing Effective Defence Rights Across Different Jurisdictions and Legal Cultures

This article considers the contribution of comparative empirical research in shaping best practice norms for custodial legal advice, and helping to address challenges in their implementation. It traces the role of ECtHR decisions and EU Directives in developing transnational norms to strengthen suspects’ right to legal assistance. Recognizing how these norms are translated into the national context, it considers the value of comparative empirical and socio‐legal research in helping to develop legislative and training measures; how roles and responsibilities are shared out in different legal systems and traditions; and practical arrangements that facilitate or inhibit the effectiveness of custodial legal advice in practice. There is a tension between framing transnational norms that are sufficiently universal to attract support, without being so broad as to lack any transformational force, and sufficiently detailed to ensure respect for core protections without imposing legal requirements too rigid and difficult to be absorbed into diverse processes of criminal justice.