From a Top-Down to a Bottom-Up Approach to Legislative Oversight

Over the years there have been several studies of oversight in the context of the US Congress; much less attention, however, has been paid to the study of oversight in parliamentary systems. Comparative studies spearheaded by several international organisations in recent years offer a different perspective of legislative oversight. They emphasise a new concept, oversight potential, and suggest that strengthening this potential would help promote good governance, fight corruption and improve democracy. This study examines the concept of oversight potential in a pure parliamentary system – the Israeli Knesset. It shows that low potential impairs actual oversight in a parliamentary system that uses mainly police-patrol techniques as defined by the 1987 work of McCubbins and Schwartz. It suggests that increasing oversight potential will help improve the oversight outputs of the legislature. Finally, it develops a bottom-up legislative approach for measuring oversight potential, and by doing so it enriches this neglected field of research.     

From a Civil Libertarian to a Sanitarian

This article is a contribution to the occasional series dealing with a major book that influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André-Jean Arnaud, Alan Hunt, and Michael Adler.     

从美好的幻想到理性的追求——评米健“从比较法到共同法”一文质疑新共同法说

本刊 2 0 0 0年第 3期刊发了米健的《从比较法到共同法———现今比较法学者的社会职责和历史使命》一文。该文将现今比较法学的历史使命定位于研究发现世界范围内的共同法 ,从而再一次提起了世界共同法或善遍法的话题。对此立论 ,法学界有不同的反应。有些学者认为所谓“共同法”的命题是不符合当今世界文化多元的发展趋势的 ,缺乏理论和现实基础。此处刊发的华枫之文从一个方面反映了这种不同的观点。此文针对新“共同法”理论提出的理由和例证 ,逐一从理论和现实层面具体分析 ,肯定了新共同法说合理可行的一面 ,但同时质疑和否定了新共同法的更深层内涵。     

An end to a rumour

Mardin, is a city in the southeastern part of Turkey where people from different cultures and religions have been living together peacefully for centuries. The province hosted many valuable historical constructions representing different civilizations. Kasimiye Medresse, one of the most important educational centers of its times, has a sacred value for people in Mardin. The reason is that the stain on the wall of Kasimiye Medresse is considered to be Sultan Kasim's blood. Our study aims to analyze if the stain in question is blood. Serological tests are performed by using "Kastle-Meyer" and "Luminol" reactives on the scrapped samples taken from stained and unstained parts of the wall. At the end of the analysis, the stain is turned out to be a dye made of herbal roots ending the rumour of centuries.     

当事人确定标准再构筑

民事诉讼法学界普遍认为,当事人概念应从程序上加以把握。以此为前提,诉讼中以谁为当事人显得尤为必要。在冒用姓名诉讼、以死者为当事人的诉讼当事人确定理论的适用,表明了各学说在具体案例中有灵活适用的必要性与现实性。对审判实务中具体情况的分析,更说明了当事人确定理论有进一步研究的价值及意义。     

Prolegomenon to a Southern Jurisprudence

It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the very many constitutional ends in the Global South? In India, legal theorist Chhatrapati Singh very originally asked if legal systems and normative systems were the same? Chhatrapati’s enquiry was however a species of the classical approach to the law that promotes the law’s purity. On the contrary, the postcolonial approaches account for the historical life as well as the political proclivities of the law. The private law theory often seen as impersonal and non-imperial comes under scrutiny in the postcolonial approaches. Duncan Kennedy and Roberto Unger notably problematized contract theory, while Upendra Baxi argued for mass tort as public law—contract and tort are both private law—to offer, if you will, a jurisprudence of the South. A southern jurisprudence essentially rejects an impersonal reading of the private law.

     

Competence to consent to treatment as a psycholegal construct

The issue of whether civilly committed patients should be extended the right to accept or refuse treatment has generated much controversy and litigation during the past 15 years. In general, the current rule is that in nonemergency situations, individuals who are competent to give informed consent to treatment should be extended the right to refuse it. Obviously, the manner in which this rule is implemented partly depends on how competence to consent to treatment is defined and measured. Most researchers have implicitly assumed that an understanding of treatment information is the sole criterion of competence. It is argued that such a definition may be incomplete and is in need of reexamination. Following a review and analysis of the relevant legal and psychological literature, a comprehensive construct of competency to consent to treatment is proposed and future directions for research are discussed.     

Is it to the advantage of a defendant to infer a greater number of contributors to a questioned sample than is necessary to explain the observed DNA profile?

When a forensic scientist presents the results of a comparison between a DNA profile from a questioned sample with that of a defendant the interpretation will be based on the premise of a given number of contributors. It is quite common practice for defence counsel to ask how consideration of a greater number of putative contributors to the profile would affect the interpretation. This note discusses the response to such a request.     

Access to treatment as a right to life and health

In some countries in Latin America, in the absence of leadership from governments, activists have had to resort to the courts to obtain access to HIV/AIDS treatments for people with HIV/AIDS. In his presentation to the XIII International AIDS Conference (abstract TuOrE458), Edgar Carrasco, of Acción Ciudadana Contra el Sida (ACCSI), discusses the process that was followed in Venezuela. The presentation describes the very limited access people with HIV/AIDS had to antiretroviral therapies and treatments for opportunistic infections under Venezuela's health and social security systems. It provides details of lawsuits that were launched on behalf of several individuals living with HIV/AIDS, and that resulted in the courts ordering the government to provide treatments for these individuals and, eventually, for all people with HIV/AIDS in Venezuela. The presentation concludes that recourse to the courts is a useful tool for activists and that civil actions launched on behalf of people with HIV/AIDS can serve as an example for people with other chronic diseases.     

Sensitivity to befallen injustice and reactions to a real-life disadvantage

The study investigates the construct validity of a self-report questionnaire for dispositional sensitivity to befallen injustice (SBI; Schmitt, Neumann, and Montada, 1995). The items of this questionnaire are combinations of four indicators of SBI (frequency of perceived injustice, intensity of anger, intrusiveness/perseverance of thoughts about the event, punitivity) with 18 types of unfair situations (e.g., performing better than others without getting any appreciation or reward). At Occasion 1, SBI, trait anger, anger in, anger out, anger control, self-assertiveness, and attitudes toward equality were measured. At Occasion 2, the subjects (57 advanced psychology students) took part in a lottery for distributing scarce teaching resources among students. The lottery led to objective advantages for some students and to objective disadvantages for others. Four reactions to the event were measured at Occasion 3: judgment of the lottery as injust, anger about the lottery, experiencing the lottery as demotivating, and approval of activities against the lottery. These reactions were regressed on the variables measured at Occasion 1. SBI was the only significant predictor of the justice judgment and the approval of activities. Anger about the lottery depended only on objective disadvantage/advantage. Experiencing the lottery as demotivating depended negatively on anger control and positively on the intrusiveness/perseverance of thoughts about the event, a subscale of the SBI inventory.