1,721,411 research outputs found
Analisi della sentenza 25 luglio 1986 n. 4755, resa dalla Sezione I della Corte Suprema di cassazione, come esempio di ragionamento per analogia
No full textIl contributo analizza un caso paradigmatico di ragionamento analogico applicato a una fattispecie concreta in materia di concorrenza sleale/illecito aquiliano. Le principali catene inferenziali del ragionamento giudiziale vengono esplicitate e schematizzate, distinguendo le premesse normative, le premesse fattuali e le rispettive giustificazioni. Sono altresì evidenziati i canoni dell'argomentazione utilizzati in motivazione dai giudici. Sono evidenziati i punti di forza e i punti deboli del ragionamento e della giustificazione delle premesse. Si tratta di un ausilio alla comprensione e applicazione della logica giuridica, con particolare riferimento al ragionamento analogico
Looking for the "Vulnerable Subject": The Mencian Account of the Person
No full textThe idea of the legal subject as an autonomous agent, with the capacity to choose and freely determine herself without external constraints or interference, complete in herself and independent, has had remarkable normative implications in structuring contemporary legal systems. The philosopher Martha Fineman recently argued against this notion, proposing the alternative one of “vulnerable subject.” This paper suggests that the notion of the person elaborated by the classical Confucian thinkers encompasses the “vulnerable subject.” The Confucian theorizations resonate with the ethic of care; however, their moral and normative relevance carries the potential for a broader scope of application, beyond the relation of care. Following a short introduction aimed at sketching the main arguments of the feminist and Marxist critique of the liberal subject, in the first part of my paper, I will illustrate the Confucian framework, and in the second part I will show how the Confucian understanding of personhood can be profitably used, testing it with the case study of persons trafficked for the purpose of sexual exploitation
Early Confucian Legal Thought: A Theory of Natural Law?
No full textConfucianism has often been compared to natural law, mainly to its non-volunta-
ristic currents. However, the possibility to include Confucianism in the group of natural law
theories is problematic. Recently, a few scholars, and notably Peerenboom, have challenged
the widely shared thesis that Confucius and early Confucian thinkers should be mentioned
in the ranks of natural law philosophers. He contends that early Confucian jurisprudence
is more profitably compared to Dworkin’s coherence theory of law than to natural law. The
present article discusses three core points: the laws of nature and natural law, the connection
between law and morality, and the basic epistemological assumptions presupposed by natural
law and Confucian theories. Offering additional reasons for dismissing a parallel between
early Confucian jurisprudence and natural law, this paper rejects the comparison with the
coherence theory as well
La discriminazione tra eguaglianza e libertà
No full textNel discorso comune, il principio di non discriminazione è un baluardo a difesa dell’eguaglianza, e l’ingiustizia della discriminazione consiste nel privare individui e gruppi della titolarità e del godimento di beni e diritti a causa di un certo tratto, come il colore della pelle, l’origine o il genere. Eppure, non tutte le tesi sulla giustificazione del diritto antidiscriminatorio si fondano su questo valore. Si è sostenuto, infatti, che sia piuttosto la protezione della libertà la ragione ultima delle proibizioni in materia di discriminazione, che si giustificano in base al diritto di realizzare autonomamente la propria individualità. Altre tesi affermano che l’obbligo di non discriminare sussiste perché la discriminazione è un comportamento irrazionale basato su stereotipi e pregiudizi, oppure perché chi discrimina non tratta le persone secondo il merito. Infine, alcuni ritengono che l’ingiustizia della discriminazione consista nello sminuire l’eguale valore morale dell’altro. Esplorando questi diversi approcci, l’autrice illumina un tema poco discusso dalla filosofia giuridica italiana, al fine di stimolare il dibattito su una materia che necessita ancora elaborazione teorica, nella convinzione che la critica morale al diritto possa portare al suo miglioramento, e con l’intento di fornire strumenti utili ai giuristi nei casi concreti
Chinese Legal Theory and Human Rights. Rearticulating Marxism, Liberalism, and the Classical Legal Tradition
No full textDoes the Chinese academic discourse on human rights differ from the official one as put forward by the Chinese government? How do Chinese legal theories justify the attribution of human rights and their protection through the law in the context of an authoritarian state? Do Chinese academic theorizations on rights and the law have any capacity to influence the wider public debate in China despite the ideological constraints and censorship imposed on academics by the party in power? In order to answer these questions, this book explores the theories of law and rights by contemporary Chinese legal scholars, paying particular attention to their views on the rule of law and the explanation of rights. It investigates the ways in which legal scholars have made use of arguments from the rediscovered Chinese traditional jurisprudence, the liberal tradition, and the Marxist-Leninist-Maoist canon
Cheng Liaoyuan e Wang Renbo, 'Quanli lun' ('权利论', 'Teoria dei diritti') Guangxi Normal University Press, 2014
No full textChinese theories of rights are illustrated and critically assessed against traditional legal thinking and Marxist contemporary orthodox legal ideology
Grounds for Asylum in the United Kingdom: Legal Materials, Case Studies, and Reflections from the Perspective of a County of Origin Expert
No full textThis book is intended as a guide and support for legal practitioners in the field of asylum law. Each case-study deals with topics that, though extremely specific, relate to broader issues that country of origin experts often deal with: religious freedom, human slavery, integrity of the person, sexual orientation and gender identity. These topics are presented in a practical, clear and schematic manner, each chapter organised in a distinct, almost diagrammatic way, to make the reader familiar with the structure that typically characterises country of origin reports - the medium that is most used by experts - a structure that necessarily is concise and crisp
Significati vecchi e nuovi di ideologia: una rassegna
No full textOld ideologies, defined as «grand narratives», seem to have faded away, but this is not a conclusive argument to state that ideology has, itself, disappeared. In fact, there are strong reasons to believe that it has not. In the first part, this article offers a synthetic survey of some of the most significant conceptions of ideology in order to avoid the confusion generated by uncritical uses of the term. The vantage point of the analysis is the fundamental conceptual opposition between «ideology» and «praxis» («truth», or «reality»). The second part of the article opens up some questions about how the new forms of ideology may thrive in the new spaces created by the communication technologies, and how this may constitute a risk for our democratic systems
The Role of the Country of Origin Expert in Judicial Proceedings
No full textThe country of origin expert is gradually becoming a central figure in legal procedures, particularly for what concerns the assessment
of cases of international protection. Judges, lawyers, and legal practitioners in general increasingly recognise the relevance of this figure,
and in their pronouncements, judges frequently rely on specialized information provided by these experts, so as to shed light on particular aspects of the country of origin of those who apply for asylum. The logic that underlies this recent development is as intuitive as it
is revealing, for it entails the notion that first-hand experience and acquired knowledge of the legal, social, religious and political facets
of specific geographical contexts can prove invaluable in evaluating the circumstances that might force individuals who come from these
contexts to ask for protection. This reflection is particularly pertinent when it comes to countries whose social fabric and consuetudes radically differ from those of the Euro-American context. As dynamics of persecution and discrimination that are found in these countries
might not be immediately visible or understandable to the untrained Western observer, and require, therefore, the mediating capacity of an informed third party. Naturally, such a view of the role of the expert immediately evokes a series of thorny questions concerning the issues that one encounters in attempting to translate specific cultural idiosyncrasies in a different cultural – and in this case, legal – idiom. Issues that have occupied, and still occupy, the minds of scholars from different disciplines. These questions, to be sure, are beyond the scope of this text. However, in the conclusion I will briefly survey some of these issues. Even still the empirical basis provided by this book offers a platform that allows these enquiries to be formulated, and as such this work is to be understood as a practical contribution to a theoretical debate, in the full knowledge that, in order to survey and unpack the potential contribution of the expert in the context of international protection, further reflection is required. The text lends itself to be used as an aid for legal practitioners. In particular, each case-study deals with topics that, though extremely specific, relate to broader issues that country of origin experts often deal with, namely religious beliefs (particularly when these are antagonised by local State institutions or they bear a negative connotation in the local perception), sexual orientation (particularly when the subject faces violent persecution due to his sexual habits and preferences) and the complex question of human trafficking and modern slavery (a topic that helps to shed light on various other forms of persecution and infringement of human rights as well as on the issue of relocation). Special attention will be given to the question of religious freedom, with two chapters devoted to this matter, one that focuses on established religious groups and another on emerging ones
The Central Mediterranean Route. Law Enforcement without the Rule of Law
Full text linkIt could be successfully argued that there is a general obligation to save lives in danger at sea and that this obligation is moral in nature. Such reasoning, however, is not the specific aim of this paper. Instead, this paper focuses on the legal obligations of the European Union (EU), its Member States, other neighbouring countries, and the EU Border and Coast Guard, towards migrants attempting the risky journey to Europe, in order to find out whether there are any legal steps that can be taken in order to help eliminate deaths in the Mediterranean. The article focuses on the main International Conventions on maritime law, international human rights law, international asylum law, the relevant legislation and regulations of the European Union and Italian law, offering an assessment on the legality of the EU border control operations at sea. The main argument of this paper is that the European policy on the enforcement of border control at sea fails to respect the basic principle of legality, and therefore it is against the Rule of Law
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