First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.     

Therapeutic jurisprudence and outpatient commitment law: Kendra's Law and case study.

This article considers the implications of assisted outpatient commitment laws (OPC), with specific focus on New York's "Kendra's Law" through the lens of therapeutic jurisprudence (TJ). In this article, the author offers perspectives on the relationship between involuntary civil commitment, outpatient commitment, and the concept of the "least restrictive alternative"; considers pertinent empirical research, and looks at OPC's controversial relationship to forced drugging. Here, the civil libertarian critique is briefly considered, as well as the MacArthur Research Network research. Finally, the author looks closely at Kendra's Law, providing a brief overview of the law itself, and identifying some "pressure points" and pivotal issues, and considers the TJ implications of Kendra's Law, to determine how it "fits" into the public's "take" on all of mental disability law.     

A socio-legal quest: from jurisprudence to sociology of law and back again

How should socio-legal studies view jurisprudence, the legal theory of jurists? Jurisprudence's task is to promote law as a socially valuable idea taking various forms in different times and places. As a value-oriented and context-focused enterprise, it should draw on the social sciences to make its inquiries relevant in a changing socio-legal world. Correspondingly, socio-legal research needs theory to link its empirical inquiries to an overall sense of what can be hoped for from law as a social phenomenon. In different ways, jurisprudence and socio-legal inquiry should help to theorize the nature of legal practice and legal experience. They are necessarily distinct enterprises with contrasting orientations, but they can aid each other in important ways.     

The doctrine of substantial performance: comparisons between English and Malaysian law

This article will consider the application of the doctrine of substantial performance from the perspective of English and Malaysian law. The analysis of the doctrine has focussed on the examination of cases on construction and building contracts. The paper explains the English approach to the doctrine by examining the factors considered judicially effecting the successful application of the doctrine. The article also compares the English approach with the Malaysian approach, where it was discovered that Malaysian courts, in some cases, consider reliance as an essential factor for the successful application of the doctrine.     

发展权与经济法的法理及其例证

发展权是一项不可剥夺的人权,由于这种权利,每个人和所有各国人民均有权参与,促进并享受经济、社会、文化和政治发展,在这种发展中,所有人权和基本自由都能获得充分实现.发展权需要国家的积极行动予以实现,经济法在保障发展权方面发挥着重要作用,并且经济法的制定和实施也应当彰显发展权精神.普遍服务是公用事业立法的基本原则,也是发展权体现与落实的基本制度.     

The past, present and future of mental health law: a therapeutic jurisprudence analysis

This article uses a therapeutic jurisprudence perspective to review the evolution of mental health law in the Western world by examining developments at various stages in history, in particular the 20th century. It suggests that one of the major challenges for the future, from a therapeutic jurisprudence perspective, will be to help minimise the stigma, prejudice and discrimination associated with mental health law. The article concludes with the suggestion that the question of whether mental health law itself, because it contributes to discrimination against mentally disordered people, may be anti-therapeutic requires more investigation and consideration.     

16-19世纪大陆法学对英国法律思想的影响

1600年至1900年的300年间,大陆法律对英国法律思想的影响可以分为三个时期:拉丁语时期、法语时期和德语时期.17世纪及18世纪初期,来自大陆法系的影响主要反映在有关罗马法和自然法--在当时不可能对二者加以截然区分--的拉丁语作品上;18世纪的绝大部分以及19世纪的最初四分之一时期,法语著作的影响占据了支配地位;19世纪的另外四分之三时期基本上处在德语著述的影响之下.     

Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

论保险法中“伞状”因果关系下“原因力”规则的适用

传统保险法运用“近因”理论对一因一果及“链状”因果关系探讨较多,其本质是寻找“有效的和居支配地位的原因”.但实践中往往存在“多项近因”,因果关系呈“伞状”特征.对于“伞状”因果关系下的保险责任问题,借鉴“原因力”规则是一种新的路径.具体适用时需根据原因力大小,将“伞状”因果关系细分为“复合原因”、“并存原因”和“混合原因”,再按照“绝对比例”规则,并与举证责任分配相结合,来解决是否赔付及赔付范围问题.     

法理学的能与不能

本文针对我国学界(特别是法学界)和社会其他各界(特别是法律界)对法理学的实用化期待以及因为此种期待的难以实现而对法理学的指责,论证了这种期待本身具有非理性.不但如此,而且这种期待对法理学研究产生了诸多的误导,举其大者为:它影响了法理学的"自然"发展;消弥了读者对法理学的兴趣;最终影响了法理学"实用性"的发挥.在此基础上,作者论证了法理学在法制建设中的能与不能,认为:法理学在法制建设中的基本功能就是精神教义功能、方法启示功能和实践应用功能.除此之外,都是法理学所不能的"广阔空间".最后,文章提出了应当区分"主观的法理学"和"客观的法理学"的观点,并通过对两者的界定及其功能的哲理说明进一步论证了法理学在法制建设中的能与不能.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.