Dissertations / Theses on the topic 'Limits to negotiating autonomy'
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1
CORDOVA, GIOVANNA. "GLI ACCORDI TRA IL CITTADINO E L'AMMINISTRAZIONE: I LIMITI ALL'AUTONOMIA NEGOZIALE E GLI ONERI ESORBITANTI." Doctoral thesis, Università Cattolica del Sacro Cuore, 2022. http://hdl.handle.net/10280/123245.
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La tesi ha ricostruito il tema dell’esercizio del potere amministrativo in via consensuale. Si è partiti dalla constatazione che nello scenario attuale si è, sempre più, diffuso l’agire dell’amministrazione secondo modelli negoziati. Più in particolare, in assenza di una norma che disciplini puntualmente il processo di formazione dell’accordo pubblico, la ricerca ha indagato quali siano i poteri spettanti all’amministrazione ed al cittadino nella fase propedeutica alla conclusione dell’accordo. Si è, inoltre, evidenziato che si sta assistendo ad un fenomeno di espansione dell’istituto in esame anche al di là del dettato normativo. La ricerca ha affrontato anche il tema dei possibili contenuti degli accordi pubblici e ha individuato le clausole pattizie che più frequentemente sono inserite nei documenti convenzionali tra queste l’attenzione si è incentrata sulle clausole contenenti i cd. ‘oneri esorbitanti’. Ci si è chiesti se e in quale misura la pubblica amministrazione possa, attraverso tali clausole, ottenere risultati maggiori rispetto a quelli conseguibili con il provvedimento amministrativo unilaterale, senza che venga violato il principio di legalità. La giurisprudenza amministrativa, attualmente prevalente, ritiene tali clausole pienamente legittime in quanto frutto di un libero consenso del privato. L’analisi ha avuto come punto di riferimento di tutta la ricerca il quesito se e come il principio consensualistico possa coniugarsi con il principio di legalità. Infine nella ricerca si sono individuati i possibili limiti all’autonomia negoziale del privato e dell’amministrazione.The thesis reconstructed the theme of the exercise of administrative power by consensus. We started from the observation that in the current scenario the action of the administration according to negotiated models has become increasingly widespread. More specifically, in the absence of a rule that regulates the process of forming the public agreement, the research investigated what are the powers due to the administration andthe citizen in the preparatory phase to the conclusion of the agreement. It was also highlighted how we are witnessing a phenomenon of expansion of the institute under consideration even beyond the regulatory dictate. The research also addressed the issue of the possible contents of public agreements and identified the contractual clauses that are most frequently included in conventional documents, among which the focus was on the clauses containing the cd. "exorbitant charges". The central question is whether and to what extent the public administration can, through these clauses, achieve greater results than those achievable by unilateral administrative measure, without violating the principle of legality. Theadministrative case-law, which currently prevails, considers that these clauses are fully legitimate as the result of the free consent of the private individual. The analysis had as a reference point of all the research the question of whether and how the consensual principle can be combined with the principle of legality. Finally, the research concerned the identification of limits to the negotiating autonomy of the private sector and the administration.
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Hawkins, Elizabeth Anne. "Changing technologies : negotiating autonomy on Cheshire farms." Thesis, London South Bank University, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.281127.
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Padgett, Stephen Mark. "Negotiating quality : everyday practices and nursing self regulation /." Thesis, Connect to this title online; UW restricted, 2006. http://hdl.handle.net/1773/7306.
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Hanna, Barbara Anne, and kimg@deakin edu au. "The intersection of autonomy and social control: Negotiating teenage motherhood." Deakin University. School of Nursing, 1996. http://tux.lib.deakin.edu.au./adt-VDU/public/adt-VDU20031124.175225.
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Contrary to popular belief, teenage mothers are a declining proportion of birthing women; however they receive much negative public attention. Of particular public concern is the high cost of supporting teenage mothers, in terms of financial, health and welfare resources. Historically, the typical founding mother of white Australia was single, but post-war changes in the family structure incorporated the expectation that children be born into two-parent households with the male as the breadwinner. Policy changes in the seventies saw the introduction of the Sole Parents Pension which meant that many birthing teenage women could choose to keep their infants rather than have a clandestine adoption or an enforced marriage. The parenting practices of teenage mothers have been criticised for being less than optimal, and mother and child are reported as being disadvantaged cognitively, psychosocially, and educationally. One widespread nursing service which provides support for new mothers in Victoria is the Maternal and Child Health Service; however, teenage mothers appear reluctant to use such services. Why this should be so became an important question for this research, since little is known about the parenting practices of teenage mothers. This study therefore sought to explore mothering from the perspective of five sole supporting teenage mothers each of whom had a child over six months of age. The research methodology took an interpretive ethnographic approach and was guided by feminist principles. The data were collected through repeated interviewing, participant observation, informal discussions with key informants, field notes and journalling. Data analysis was aided by the use of the software, program NUD-IST. It was found that the young women in this study each chose to give birth with full realisation that their existence was dependent on the Welfare State. Unanticipated, however, were the many structural barriers which made their lives cataclysmic, but these reinforced their determination to prove themselves worthy and capable mothers. The young women negotiated motherhood through a range of social supports and through maternal practice. Unquestionably, their social dependency on the welfare system forced them into marginal citizen status. Moreover, absolute and intrinsic poverty levels were experienced, brought about by inadequate welfare payments. Formal support agencies, such as the Maternal and Child Health nurses were rarely approached to provide childrearing support beyond the initial months following birthing, since the teenagers' basic needs such as shelter, food and clothing took precedence over their parenting needs. Additionally, some nurses were perceived to hold judgmental attitudes towards teenage mothers. It was far easier to forestall confrontation with nurses and the other 'older' women clientele by avoiding them. Thus XI they turned to charitable agencies who provided a safety net in the form of emergency supplies of money, food, or equipment. Informal networks of friends provided alternative modes of support when family help failed to materialise. The children, however, provided the young women with an opportunity to transform their lives by breaking free of the past, and by creating a new, mature existence for themselves. Despite being abandoned by family, friends, lovers and society, in the privacy and isolation of their own homes, they attempted to provide a more nurturing environment for their children than they themselves had received. Each bestowed unconditional maternal love on the child and were rewarded through the pleasures of watching their children grow and develop into worthwhile individuals. The children became the focus of their attention and their reason for living. In the course of their welfare dependency, the young women became public property, targets of surveillance, and were subjected to stigmatising and condescending public attitudes wherever they went. In this way, it was evident that they were an oppressed group, but each found ways of resisting. Rather than focussing on their oppressive or disabling lives, or dwelling on their disadvantaged status, the young women sought their identities as mature women through motherhood and by demonstrating that they could do this important job well. Through motherhood their lives had meaning and a sense of purpose. The thesis concludes that motherhood in the teenage years is difficult. However, if appropriate supports are made available, teenage mothers need be no different from non-teenage mothers. But with state resources shrinking, and their own resources limited, teenage mothers are disadvantaged. In some ways, this study showed that all levels of support were inadequate, although those provided through the charitable organizations were seen to be the most appropriate. This reflects the current policy of economic rationalism adopted by most Western liberal democracies in the 1980s and 1990s and no less by the former Keating Labor Government in Australia.
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Tully, Elizabeth. "Doing professionalism "differently" : negotiating midwifery autonomy in Aotearoa/New Zealand." Thesis, University of Canterbury. Sociology, 1999. http://hdl.handle.net/10092/6531.
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This thesis examines how midwives have been doing professionalism in Aotearoa/New Zealand since gaining the legal right to practise independently of doctors in 1990. It analyses midwifery autonomy as a complex and contingent outcome of a competitive political process involving key groups of actors in the health/maternity field. Unlike approaches that regard professional status simply as an outcome of an occupation’s organisational structure or political strategising, this account seeks to tease out some of the complexities involved in the relational construction of professional positioning. In the process it shows how midwifery has been able to utilise gender, profession/state and profession/consumer relations as resources in its efforts to obtain and consolidate an autonomous status vis a vis nursing and medicine.
In examining the professionalising strategies of midwives, attention is paid to the role played by state actors in enhancing or diminishing the jurisdiction that a profession has over an area of work that is constituted as ‘expert’ practice. This is demonstrated in the thesis in relation to both the granting of midwifery autonomy and the subsequent introduction of fixed-fee funding for primary maternity services. These policy changes had significant implications for midwifery and medical autonomy, forms of practice and relations with clients. Discussion of how the change in funding arrangements created opportunities for midwifery to consolidate its jurisdiction over ‘normal’ childbirth highlights the significance for professions of aligning their interests with broader political and economic objectives.
Analysis of how midwifery has been constituted by midwives and maternity consumers as a form of feminist professional practice based on ‘partnership’ shows how particular constructions of gender and expertise can be used as discursive resources in the struggle over autonomy. Doing professionalism according to this ‘new’ model of practice involves positioning midwives as autonomous practitioners vis a vis other health professionals but as ‘partners’ with maternity consumers. It is argued in the thesis that a distinction between ‘old’ and ‘new’ forms of professionalism should be seen as a false dichotomy. While ‘new’ professionalism may provide the basis for more equitable professional/client relations, it also supports an alternative claim to ‘expertise’ and autonomy.
Professionalism should be understood as socially situated, both in practice and discursively, and as subject to interpretation and redefinition. Rather than conceptualising a shift from one model or ideal-type of professionalism (‘old’) to another (‘new’), it is argued that different forms of professionalism exist simultaneously and can be strategically utilised by professions in ongoing contestation and negotiation over professional status. How a profession uses its knowledge base as a resource in claiming jurisdiction over work that it constructs as a form of ‘expert’ practice is variable. Opportunities for doing professionalism ‘differently’ are contingent on a profession’s embeddedness in networks of relations with state actors, clients and other professions.
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Fisher, Michael. "Limits to the managerial state : negotiating workplace change in the civil service." Thesis, University of Newcastle Upon Tyne, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.270801.
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Oberkofler, Monica J. "The European Court of Justice and the limits of supranational autonomy." Thesis, University of Oxford, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.399413.
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Szabowski, Lara. "Seduction at the Boundary of Horror : The limits of bodily autonomy in sexuality." Thesis, Malmö universitet, Malmö högskola, Institutionen för globala politiska studier (GPS), 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:mau:diva-40300.
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The thesis discusses the topic of bodily autonomy as a Human Rights related matter in connection to sexuality, specifically BDSM. In the realm of BDSM concerns regarding bodily autonomy, bodily integrity, perversion, physical and mental health can be found. Therefore the space of BDSM is analyzed in regards to aspects, such as medico-judicial institutions, social and personal perception factor in on the space of bodily autonomy and its transgression, with the aim of getting a deeper understanding of the concept of bodily autonomy. Three different countries, the United Kingdom, Germany, and Denmark are being analyzed and compared in a content analysis. Foucault’s theory of power, self-disciplining, transgression as well as Bataille's theory of transgression and eroticism are made use of. This shows how and which topics relate to bodily autonomy and each other and how bodily autonomy and its use changes depending on the factors relation to each other and their prioritization.
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Kettle, Nancy M. "Informed Consent: Its Origin, Purpose, Problems, and Limits." Scholar Commons, 2002. https://scholarcommons.usf.edu/etd/1523.
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The doctrine of informed consent, defined as respect for autonomy, is the tool used to govern the relationship between physicians and patients. Its framework relies on rights and duties that mark these relationships. The main purpose of informed consent is to promote human rights and dignity. Some researchers claim that informed consent has successfully replaced patients' historical predispositions to accept physicians' advice without much explicit resistance.
Although the doctrine of informed consent promotes ideals worth pursuing, a successful implementation of these ideals in practice has yet to occur. What has happened in practice is that attorneys, physicians, and hospital administrators often use consent forms mainly to protect physicians and medical facilities from liability. Consequently, ethicists, legal theorists, and physicians need to do much more to explain how human rights and human dignity relate to the practice of medicine and how the professionals can promote them in practice. This is especially important because patients' vulnerability has increased just as the complexity and power of medical science and technology have increased. Certain health care practices can shed light on the difficulties of implementing the doctrine of informed consent and explain why it is insufficient to protect patients' rights and dignity.
Defining a normal biological event as a disease, and routinely prescribing hormone drug therapy to menopausal women for all health conditions related to menopause, does not meet the standards of free informed consent. Clinicians provide insufficient disclosure about risks related to long-term use of hormone therapies and about the absence of solid evidence to support their bias toward hormone therapies as a treatment of choice for menopause related health conditions. The contributing problem is women's failure to act as autonomous agents because they either choose not to take an active part in their own therapy or because they fear to question physicians' medical authority. To insure that patients' autonomy and free choice are a part of every physician-patient interaction, physicians and patients need actively to promote them as values that are absolutely indispensable in physicians' offices, clinics, and hospitals.
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Molinar, Robert. "Self-Organization as a Response to Homelessness: Negotiating Autonomy and Transitional Living in a "Village" Community." Thesis, University of Oregon, 2018. http://hdl.handle.net/1794/23826.
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Tent cities date back to the 1930s; however, the past decade has seen a rise in formalized camps, many attempting to function as democratic communities. Here, democratic communities refer to temporary spaces in which people without homes (PWH) live together with the goal of governing their own affairs (horizontal rather than top-down). Findings of the first “village” for the homeless indicate mixed results with self-governance among PWH in terms of the autonomy of individuals or as a method to mitigate homelessness. Given decline of social welfare budgets, as well as criticisms that shelterization and criminalization try to control the poor, government-sanctioned camps have provided safe, legal, dignified spaces for PWH.
Studies of tent cities are growing, yet few follow their attempt to implement self-governance within the first few years of existence. This ethnography of a transitional “village” in the Pacific Northwest fills a gap by uncovering socio-cultural and organizational processes that facilitate and impede self-organization. The village is collaborative; a nonprofit provides oversight to residents dwelling in tiny houses. The village is neither run exclusively by the homeless nor directly managed by housed “outsiders.” Using participant-observation, interviews, and documents, I study the development of the village’s vision, rooted in Occupy yet influenced by neoliberal principles. Some view this village as a safe, stable place in which to secure future housing while providing dignity and autonomy; residents themselves were divided in how they experienced autonomy. For some, living there can be difficult since they have the authority to enforce community rule violations on fellow residents but often do not out feeling threatened or uneasy about putting a fellow resident in check. Some residents perceive a lack of power in regulating others. The authority of the nonprofit board is inadvertently reproduced even as it seeks to relinquish that authority. My work also has implications for research on relations between “housed” and “homeless”, and for decoupling processes that focus on divergence between stated organizational policies and actual practices.
Materials related to this work (Appendices A-E) are included as supplemental files with this dissertation.
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Akcali, Gur Berna. "Limits on state autonomy in regulating services trade : regional and international trade liberalization commitments and public morals." Thesis, King's College London (University of London), 2014. https://kclpure.kcl.ac.uk/portal/en/theses/limits-on-state-autonomy-in-regulating-services-trade(49153f2c-a32e-4594-bfe3-268ce5f30a8f).html.
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This thesis explores the scope of the autonomy of the states in regulating services trade in areas that concern their public morals and analyses whether the indeterminacy of the public morals exceptions in supranational trade regimes reveals fundamental flaws in the design of those regimes as they apply to trade in services with reference to their experiences with cross-border provision of online gambling services. This interplay and tension between the scope of autonomous areas of the states and organizations since World War II has received considerable scholarly attention. Most of the academic discourse consists of supporting claims for and critical analysis of the constitutionalisation of the supranational legal order and the goals of supranational constitutionalism which typically aim for universality of rules and coherence. The persistent diversity of public morals at the national level is among those national circumstances often perceived as a threat to the constitutionalisation project and thought of as discrediting the achievability of the constitutionalist ideal. On the other hand, proponents of legal pluralism often emphasize the importance of preserving public morals. This thesis finds that, in both the WTO and EU context even if national laws regarding public morals are incoherently pluralistic, it may be possible for supranational regimes to bridge the structural divide between international laws and national laws effectively by developing doctrinal rules and practices that enable them. The analysis based of the online gambling example shows that both organizations have been able to accommodate these divergences without undermining their treaty objectives, mostly owing to their effective judicial review mechanisms which are complemented by, more in the case of EU, other conflict resolution mechanisms be including dialogue and negotiation. Within this framework, this credits constitutional pluralism perspective appears as the appropriate choice both for descriptive and normative purposes.
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Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia." Thesis, Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. https://researchrepository.murdoch.edu.au/id/eprint/210/.
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This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
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Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions : negotiating Aboriginal Native Title in South Australia /." Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. http://researchrepository.murdoch.edu.au/210/.
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This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
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Davis, Andrew S. "Exploring the limits of asymmetric devolution and autonomy : education and immigration policies in the United Kingdom and Spain." Thesis, University of Nottingham, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.438504.
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Kettle, Nancy M. "Informed consent: its origins, purpose, problems, and limits [electronic resource] / by Nancy M. Kettle." University of South Florida, 2002. http://purl.fcla.edu/fcla/etd/SFE0000041.
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Title from PDF of title page.Document formatted into pages; contains 165 pages.
Thesis (M.A.)--University of South Florida, 2002.
Includes bibliographical references.
Text (Electronic thesis) in PDF format.
ABSTRACT: The doctrine of informed consent, defined as respect for autonomy, is the tool used to govern the relationship between physicians and patients. Its framework relies on rights and duties that mark these relationships. The main purpose of informed consent is to promote human rights and dignity. Some researchers claim that informed consent has successfully replaced patients&softsign; historical predispositions to accept physicians' advice without much explicit resistance.
Although the doctrine of informed consent promotes ideals worth pursuing, a successful implementation of these ideals in practice has yet to occur. What has happened in practice is that attorneys, physicians, and hospital administrators often use consent forms mainly to protect physicians and medical facilities from liability. Consequently, ethicists, legal theorists, and physicians need to do much more to explain how human rights and human dignity relate to the practice of medicine and how the professionals can promote them in practice.
This is especially important because patients' vulnerability has increased just as the complexity and power of medical science and technology have increased. Certain health care practices can shed light on the difficulties of implementing the doctrine of informed consent and explain why it is insufficient to protect patients' rights and dignity. Defining a normal biological event as a disease, and routinely prescribing hormone drug therapy to menopausal women for all health conditions related to menopause, does not meet the standards of free informed consent.
Clinicians provide insufficient disclosure about risks related to long-term use of hormone therapies and about the absence of solid evidence to support their bias toward hormone therapies as a treatment of choice for menopause related health conditions. The contributing problem is women's failure to act as autonomous agents because they either choose not to take an active part in their own therapy or because they fear to question physicians' medical authority. To insure that patients' autonomy and free choice are a part of every physician-patient interaction, physicians and patients need actively to promote them as values that are absolutely indispensable in physicians' offices, clinics, and hospitals.
System requirements: World Wide Web browser and PDF reader.
Mode of access: World Wide Web.
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Geiser, Madeline Allott. "The Limits of Law in the American Reproductive Freedom Movement." Ohio University Honors Tutorial College / OhioLINK, 2020. http://rave.ohiolink.edu/etdc/view?acc_num=ouhonors1587700422115124.
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Santos, Guilherme Moulin Simões Penalva. "A autonomia da vontade nos contratos internacionais: a cláusula de eleição de lei no direito brasileiro." Universidade do Estado do Rio de Janeiro, 2010. http://www.bdtd.uerj.br/tde_busca/arquivo.php?codArquivo=1886.
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O presente trabalho aborda, da perspectiva do ordenamento jurídico brasileiro, a cláusula de eleição de lei nos contratos internacionais. Para isso, dividimos este estudo em três partes. Na primeira, tratamos das premissas fundamentais do nosso objeto. Na segunda, abordamos especificamente a escolha de lei no Brasil. Na terceira, versamos sobre as propostas de reforma da legislação brasileira e tecemos alguns comentários a título de conclusão. Na primeira parte abordamos (i) aspectos gerais dos contratos internacionais, (ii) o princípio da autonomia da vontade, (iii) os limites à aplicação da lei estrangeira e (iv) como a escolha de lei é disciplinada na Europa e nos EUA. Na segunda parte deste trabalho, examinamos a cláusula de eleição de direito aplicável de acordo com o sistema jurídico pátrio. Em seguida, estudamos a extensão da autonomia da vontade dos contratantes. Na última parte, em vista das conclusões obtidas nos capítulos anteriores, verificamos a necessidade de reforma da legislação brasileira para adequá-la aos padrões internacionais.The purpose of this paper is to analyze, from the perspective of the Brazilian legal system, the choice of law clause in international contracts. We divide this work in three parts. In the first one, we examine some general important issues related to our subject. In the second one, we specifically discuss the choice of law according to the Brazilian law. In the last part, we examine some proposals to update the Brazilian legal system. In the first part, we discuss (i) general aspects of international contracts, (ii) the principle of party autonomy, (iii) limitations to apply a foreign law and (iv) how the choice of law is set forth in Europe and the USA. In the second part, we analyze the choice of law clause under Brazilian law. Afterwards, we investigate the extension of party autonomy. In the last part, due to the conclusions of the previous chapters, we verify the need for an update of the Brazilian legislation to meet international standards.
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Paton, Alexis Hannahson Collins. "Autonomy and the infertility patient : exploring the limits of the criteria that identify autonomous decision making with regards to the female infertility patient." Thesis, University of British Columbia, 2010. http://hdl.handle.net/2429/24116.
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Autonomous decision making is the cornerstone of bioethics, as it respects every person's right to make decisions for themselves based on their own values and beliefs. Maintaining autonomy in medicine is especially important due to the long standing history of paternalism in medicine. Today best practice in medicine demands that competent patients be allowed to make autonomous decisions about their treatment. The criteria that we use to classify an individual as autonomous are crucial in medicine, where the validity of a patient's informed consent to receive treatment rests on whether they are recognized as autonomous. One area in which the classification of autonomy is most perplexing is that of infertility. The known causes of infertility are few, the number of effective diagnostic tests are limited and less than 50% of couples end up with a child. The uncertainty and limited prognosis mean that choices should be driven by personal preferences rather than paternalism. Due to the nature of infertility, the intricacies of its diagnosis and treatment as well as the heavy influence of social norms about femininity, infertile women may lose their identity as autonomous individuals, despite seeming to be autonomous in all other respects. While the traditional criteria for autonomy successfully identify those female infertility patients who are not autonomous, they give us no direction as to how to tackle the larger issue of societal influence on infertility patients. I will argue that a change in the theory used by medical professionals is necessary in order to address the concern of social influence on patient decision making. Instead we must replace the use of traditional autonomy by the medical institution as the paradigm with the theory of relational autonomy, since relational autonomy is the only theory that can properly account for societal influence on patients.
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Leonardi, Eleodora dos Santos. "A RESOLUÇÃO DOS CONFLITOS SOCIOMORAIS E SUAS IMPLICAÇÕES NA CONSTRUÇÃO DA AUTONOMIA MORAL DOS ALUNOS." Universidade Federal de Santa Maria, 2008. http://repositorio.ufsm.br/handle/1/6807.
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Coordenação de Aperfeiçoamento de Pessoal de Nível SuperiorThis summation refers to the investigation inserted in the Curriculum, Teaching and School Practices Research Line (PPGE/CE/UFSM). The objective was to understand the implications of the solution of sociomoral conflicts on the moral autonomy building of students. The methodology used, it was described as qualitative under a case study perspective. The subjects who participated in the research were two Beginner Years of Fundamental Teaching fourth grade teachers and their respective groups. The context in which the research took place was a state school that belongs to the public instruction net of the city of Santa Maria-RS, the school being located at periphery of the city. The data was gathered through semistructured interviews and classroom live observation. The analysis of that data was organized into three categories, according to its frequency and centralization, in a quest for understanding the study: the solution of the sociomoral conflicts, the sociomoral rules and environment and the limits to be trespassed: the possible autonomy. Those categories were explored having the concept of morality presented by Jean Piaget as axis. From the acquired data analysis, one can conclude that the means the teachers used for solving the sociomoral conflicts did not favour the sociomoral autonomy building of the students. Because their practices were ruled, mainly, by coercion relationships, based on unilateral respect. From this investigation, one can understand the importance of sociomoral conflicts solution learning to be conceived in the educational institutions curriculum as an useful knowledge which will grant a pedagogical practice aimed at the moral autonomy building of the students.
Este resumo refere-se à investigação inserida na Linha de Pesquisa Currículo, Ensino e Práticas Escolares (PPGE/CE/UFSM). O objetivo foi compreender as implicações da resolução de conflitos sociomorais na construção da autonomia moral dos alunos. A metodologia utilizada caracterizou-se como qualitativa sob uma perspectiva de estudo de caso. Os sujeitos que participaram da pesquisa foram duas professoras da 4ª série dos Anos Iniciais do Ensino Fundamental e suas respectivas turmas. O contexto no qual a pesquisa realizou-se foi uma escola estadual da rede de ensino público do município de Santa Maria-RS, localizada na zona periférica da cidade. Os dados foram coletados através de entrevistas semi-estruturadas e observações em sala de aula. A análise desses dados organizou-se em três categorias, em função de sua freqüência e centralidade, na busca de compreensão do estudo: a resolução dos conflitos sociomorais, as regras e o ambiente sociomoral e os limites a serem transpostos: a autonomia possível. Essas categorias foram exploradas tendo como eixo fundamental o conceito de moralidade apresentada por Jean Piaget. A partir da análise dos dados obtidos pode-se concluir que as formas como as professoras resolveram os conflitos sociomorais não favoreceram a construção da autonomia moral dos alunos. Pois, suas práticas se pautaram, principalmente, em relações de coação, fundamentadas no respeito unilateral. A partir dessa investigação pode-se compreender a importância da aprendizagem da resolução de conflitos sociomorais ser concebida nos currículos das instituições educacionais como um conhecimento útil que contemple uma prática pedagógica voltada para a construção da autonomia moral dos alunos.
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Szabó, Tomáš. "Analýza správania sa neskúsených vyjednávačov v priebehu vyjednávania." Master's thesis, Vysoká škola ekonomická v Praze, 2013. http://www.nusl.cz/ntk/nusl-196542.
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This thesis attempts to map out the negotiation strategies used by unskilled negotiators and among these, to identify those strategies which prevent such negotiators from achieving the most effective outcome. In highlighting such incorrect negotiating strategies, the thesis aims to steer academics away from using such strategies as part of their future teaching material on negotiation strategies. The theoretical aspect of this work describes the theory behind negotiating strategies and maps the features, styles and negotiation procedures which are used during negotiation. The practical part of the thesis interprets results gained from the research which was carried out. This research, which was conducted in the winter semester of the 2013/2014 academic year, involved the staging of bargaining games that were held over five separate sessions as part of the subject "Introductory training of social and management skills".
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Oliveira, Tássia Louise de Moraes. "Os limites do acordo restaurativo." Faculdade de Direito, 2018. http://repositorio.ufba.br/ri/handle/ri/26757.
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Face ao desgaste do paradigma retributivo, estruturado na racionalidade penal moderna, que ignora a singularidade dos conflitos originados pelas infrações criminais e a impossibilidade de tratá-los de forma igualitária tomando-se como base apenas classificações legais, emerge a justiça restaurativa como alternativa à solução destes conflitos, resgatando a vítima, figura esquecida do processo penal tradicional, e dando a esta, e também ao ofensor, a oportunidade de construírem a solução adequada aos conflitos. A noção de justiça restaurativa desponta, com forte influência abolicionista e das diretrizes da vitimologia, com a pretensão de uma reação diferente da resposta fornecida pelo sistema de justiça criminal tradicional, baseada na democratização do processo, assim como na recusa do autoritarismo que permeia o direito penal, na busca de respostas mais humanas ao crime, atendendo aos interesses das vítimas, dos ofensores e da comunidade envolvida. Na perspectiva da proposta restaurativa, a reparação do dano surge como reflexo do arcabouço valorativo herdado da vitimologia, de modo que os danos causados à vítima devem ser reparados. Para tanto, há um processo complexo que envolve diferentes atitudes as quais o ofensor pode tomar para reparar, material e/ou simbolicamente o ofendido. Deste modo, a reparação seria suficiente para a concretização da justiça, não sendo necessário infligir dor ou sofrimento ao ofensor. Ademais, o acordo restaurativo, além de reparar a vítima, proporcionaria a reintegração do ofensor e a restauração da comunidade abalada pelo delito. Inobstante as possibilidades de reparação que podem surgir do acordo restaurativo sejam amplas, abertas às peculiaridades de cada caso e assumidas de forma voluntária, estas não podem ser irrestritas e ilimitadas, fazendo-se relevante delimitar, a partir da coerência, da proporcionalidade e dos ditames constitucionais, os limites do acordo restaurativo. A estipulação dos limites do acordo restaurativo não deve distorcer os objetivos e práticas da intervenção restaurativa. A delimitação das barreiras limitadoras do pacto restaurativo tem a função de alinhar a intervenção restaurativa aos direitos fundamentais dos indivíduos constitucionalmente assegurados, de modo que o esforço reparatório e a solução restaurativa não venham a ser contaminadas com o arcabouço valorativo retributivista.
Faced with the erosion of the retributive paradigm, structured in the modern criminal rationality, which ignores the uniqueness of the conflicts originated by the criminal infractions and the impossibility of treating them in an egalitarian way, based only on legal classifications, restorative justice emerges as an alternative to the solution rescuing the victim, a forgotten figure in traditional criminal proceedings, and giving the victim and the offender the opportunity to construct the appropriate solution to the conflicts. The notion of restorative justice emerges, with a strong abolitionist influence and the guidelines of victimology, with the pretension of a different reaction from the traditional criminal justice system, based on the democratization of the process, as well as on the refusal of authoritarianism that permeates the law in the search for more humane responses to crime, taking into account the interests of victims, offenders and the community involved. In the perspective of the restorative proposal, the reparation of the damage arises as a reflection of the value structure inherited from the victimization, so that the damages caused to the victim must be repaired. For this, there is a complex process involving different attitudes which the offender can take to repair, material and / or symbolically the offended. In this way, reparation would be sufficient for the realization of justice, and it is not necessary to inflict pain or suffering on the ofender. In addition, the restorative agreement, besides repairing the victim, would provide the reintegration of the offender and the restoration of the community shaken by the crime. Although the reparative possibilities that may arise from the restorative agreement are broad, open to the peculiarities of each case and taken on a voluntary basis, they can not be unrestricted and unlimited, making it relevant to delimit, from the coherence, proportionality and constitutional dictates, the limits of the restorative agreement. The stipulation of the limits of the restorative agreement should not distort the objectives and practices of the restorative intervention. The delimitation of the limiting barriers of the restorative pact has the function of aligning the restorative intervention to the fundamental rights of the individuals constitutionally assured, so that the reparative effort and the restorative solution will not be contaminated with the retributivist value framework.
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Fehmel, Thilo. "Staatshandeln zwischen betrieblicher Beschäftigungssicherung und Tarifautonomie." Universitätsbibliothek Leipzig, 2016. http://nbn-resolving.de/urn:nbn:de:bsz:15-qucosa-208318.
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In demokratischen politischen Systemen haben staatliche Akteure darauf zu achten, die legitimatorische und die ökonomische Basis ihres Handelns stabil und miteinander vereinbar zu halten. Dieses Interesse des politischen Systems an sich selbst wird damit zur Grundlage all seiner Steuerungsbemühungen. Aufgrund der strukturellen Abhängigkeit des Staates von einer funktionsfähigen Ökonomie ist staatlichen Akteuren auch an der Steuerung der industriellen Beziehungen gelegen – zumindest dann, wenn sie in Rezessionsphasen das Handeln der Tarifverbände als dysfunktional bewerten. Unmittelbarer staatlicher Intervention und Steuerung steht aber das grundgesetzlich verankerte Konstrukt der Tarifautonomie entgegen. Das bedeutet jedoch nicht, dass dem Staat alle Steuerungsmöglichkeiten genommen sind. Am Beispiel der staatlichen Forcierung betrieblicher Bündnisse für Arbeit wird gezeigt, dass der Staat über den Umweg der indirekten, diskursiven Steuerung in der Lage ist, gesellschaftliche Akteure zur Selbststeuerung anzuregen. Im Ergebnis lässt sich eine Transformation der Strukturen der industriellen Beziehungen beobachten, die zu einem wesentlichen Teil nicht von den Tarifverbänden, sondern vom Staat ausgehtIn political systems that are liberal and democratic state actors must keep the legitimating and economic basis of their actions stable and compatible with each other. This interest of political systems in themselves becomes the basis of all their intervention policies. Due to the structural dependency of the state from a functioning economy state actors also attempt to regulate industrial relations; at least during periods of recession in which free collective bargaining is regarded as dysfunctional. Direct state intervention and regulation are restricted by the right of free collective bargaining, which is guaranteed by the German constitutional law. Notwithstanding this does not mean that the state has lost all its possibilities of regulation and control. The example of the state’s demand, and to a certain extent enforcement, of internal alliances for jobs shows that the state is very well in the position to stimulate collective actors to self-regulation. This stimulation takes place through a discursive, indirect intervention. As a result of these shifts and changes a structural transformation of industrial relations takes place, which, to a great extent, is not initiated by employers’ and employee’s associations, but by the state
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Paul, Ana Carolina Lobo Gluck. "Limites à autonomia privada." Pontifícia Universidade Católica de São Paulo, 2008. https://tede2.pucsp.br/handle/handle/8078.
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Previous issue date: 2008-05-28Private autonomy is one of the main principles of Civil Law and it indicates the power given by juridical order to people to rule their own juridical relationships. The private autonomy concept itself reveals that this power isn t absolute. It means that people s will must be conformed to public order rules and good behavior. Some of theses limits are easy to be applied because they are detailed by law. However, there are limits in juridical order that are general clauses, and other limits that even have express determination, but are given by the dynamic of the system. In theses hypothesis, its complex to define private autonomy limits, due to the inexistence of a generic formula that can be applied to every situation. In these cases, the limits are extract case by case, taking into consideration elements that, sometimes, are beyond juridical order. This work aims to study private autonomy limits that are consequences of the general clauses, the property social function, the contract social function, the good-faith and from the conflict between private autonomy and individual rights
A autonomia privada é um dos princípios estruturantes do Direito Civil e consiste no poder que as pessoas têm de regulamentar suas relações jurídicas, nos limites fixados pelo ordenamento jurídico. O próprio conceito de autonomia privada revela que esse poder não é absoluto, o que significa que a vontade dos sujeitos deve estar conformada a normas de ordem pública e aos bons costumes. Alguns desses limites são de fácil aplicação por estarem detalhados na própria lei. Há, porém, limites que estão contidos no ordenamento sob a forma de cláusulas gerais e outros que sequer contam com determinação expressa, mas são depreendidos pela dinâmica do sistema. Nessas hipóteses, a determinação dos limites à autonomia privada é mais complexa, pois não há uma formulação abstrata aplicável a todas as situações, devendo os limites ser extraídos caso a caso, levando em consideração fatores que, às vezes, transcendem o próprio ordenamento jurídico. O propósito dessa dissertação é estudar os limites à autonomia privada, decorrentes das cláusulas gerais da função social da propriedade, função social do contrato, boa-fé objetiva e da colisão entre a autonomia privada e os direitos individuais
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GASTINGER, Markus. "Negotiating bilateral trade agreements in the European Union : Commission autonomy and Member State control." Doctoral thesis, 2014. http://hdl.handle.net/1814/33552.
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Defence date: 18 November 2014Examining Board: Prof. Adrienne Héritier, European University Institute (supervisor) Prof. Andreas Dür, University of Salzburg (co-supervisor) Prof. László Bruszt, European University Institute Prof. Eugénia da Conceição-Heldt, Dresden University of Technology
Which issues does the Commission focus on in the negotiation of bilateral trade agreements? How (to what extent) autonomous is the Commission, which sources and causal mechanisms bring this autonomy to bear, and have these sources changed over time? Which is the most effective mechanism of control available to member states in the Council to rein in the Commission? These are the three interrelated questions addressed by this study. Concerning the first question, I find that the Commission focuses on inte-gration issues. These are primarily found in the joint bodies established by the underly-ing agreements as well as the number of substantive issues mentioned therein. On ques-tion number two, I find that the Commission distinctly shapes BTAs slightly over 50 per-cent of the time. The primary source of Commission autonomy in the 1970s and 1980s was asymmetric information, i.e. the Commission having greater knowledge about all contingencies in the negotiations than the member states. More recently, Commission autonomy is better captured by its agenda-setting power, here defined as its ability to put before the Council an agreement that member states can vote only either up-or-down. With regard to question three I find that, initially, member states’ credible threat of non-ratification provided the most effective backstop to the Commission running lose. Over time, member states have stepped up monitoring mechanisms to take control of negotiations earlier, making direct oversight the most important tool for Council control. I examine and expound this argument by adopting a Principal-Agent (PA) perspective and process-tracing methodology against the backdrop of six in-depth case studies se-lected in accordance with objective and replicable criteria, of which five are retained for the final analysis. In conclusion, I join the camp of scholars making the case for a significant independent causal influence of the Commission on European public policy out-comes.
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Chang, Tzu-Fen. "The Acculturation of Chinese-American Adolescents in Negotiating Autonomy and Connectedness: Comparison between Chinese- and European-Americans." Thesis, 2009. http://hdl.handle.net/1969.1/ETD-TAMU-2009-08-7112.
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Chinese-American adolescents were compared with the major group in the
United States (European-American adolescents) in negotiating self-concepts related with
autonomy and connectedness. Senses of autonomy and connectedness were evaluated by
examining adolescents' cultural value orientations (individualism and collectivism),
parent-adolescent relationships (decision-making styles and power perception), and
relations between the two constructs. Participants included 56 first- or second-generation
Chinese-American adolescents (18.5% of first-generation and 81.5% of secondgeneration)
and 45 European-American adolescents, accompanied with their mothers (47
Chinese-American mothers and 42 European-American mothers).
In terms of cultural value orientations, Chinese- and European-Americans' selfconcepts
were consistently oriented towards collectivism more than individualism in
adolescents and mothers. With regard to parent-adolescent relationships, Chinese-
American adolescents have identified with the dominant culture to show similar desires
of being autonomous as European-American adolescents. However, Chinese-American mothers adopted more authoritarian, conservative, and inflexible parenting styles than
European-American mothers. With regard to the relations between variables of cultural
value orientations and variables of parent-adolescent relationships, the pattern of
findings was consistent with the notion that Chinese-American adolescents who
internalize highly collectivistic cultural values displayed more collectivistic
communication styles in parent-adolescent relationships than European-American
adolescents.
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LIN, WEN-YUAN, and 林文遠. "Branding an "Independent" Artist : Negotiating the Autonomy of Deserts Xuan Under the Control of Multinational Music Corporation." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/94546316260541535956.
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碩士世新大學
傳播管理學研究所(含碩專班)
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This thesis explores how Deserts Xuan (張懸), a Taiwanese independent pop music artist well known among live houses, pubs and the Internet, negotiate her brand attributes presented to the publics under the control of multinational media corporation. Xuan’s light and clear voice is heart-touching and inspiring which attracts many college students and independent music lovers. This study analyzes Xuan’s longstanding struggles with multinational music corporate since she got the first contract with SONY BMG, one of the four major international labels. Known as “idiosyncratically artistic,” Xuan started composing when she was 13 and by the age of 19, Xuan had written over 100 songs. She is also a guitar player, and writes most of her songs with acoustic guitar. She waited for 5 years for the releasing of her debut album ” My Life Will...” Her presence in the alternative scene was demonstrated as a recipient of four awards in the major categories of 18th Golden Melody Award, which had been considered as unbelievable for independent artists in a high-profile Mandarin pop music award. This research concludes that Xuan has long strengthened her branding equities with autonomous creativities. Serving as vocalist, lyricist, songwriter and producer on all the tracks, Xuan veers away from her folksy beginning to create a musical dreamscape that submerges and transports her followers into an alternate universe of musing. Over a period of time, she has presented her artistic capabilities cohesively and consistently. Musically, the multinational label also leash the control over Xuan, lending her to own more autonomy and maintaining an image of sincerity and creativity.
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Vopěnková, Tereza. "Dobré mravy a veřejný pořádek jako limity autonomie vůle v občanském právu." Master's thesis, 2017. http://www.nusl.cz/ntk/nusl-266997.
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1 Abstract This thesis deals with the principles of good morals and public order focusing on their role function as limits restricting the autonomy of the will. Although both principles are vague legal concepts, this thesis doesn't seek to define exactly not even cover all the practical possibilities of their application. The aim of the thesis was to bring the possible content of these principles and to highlight their importance in assessing the validity of legal actions or to specify further consequences of legal conduct, which would be contrary to these principles. The view on this topic is primarily from the Czech law perspective. On exemplary and a limited number of legal institutes, this thesis tries to capture the possibilities of using good manners and public order as correctives of autonomy of will. The thesis is divided into eight chapters. The theme of the first chapter is the principle of autonomy of the will and its position in the Czech legal order. Such introduction was begun for the purpose primarily for understanding the whole thesis and to highlight the importance of this principle for the functioning of a democratic society. The second chapter deals with the principle of good morals. Different opinions on the content of this term are closer specified. Furthermore, this section discusses...
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Dorabialska, Anna Magdalena. "Ograniczenia wyboru prawa w polskim systemie prawa prywatnego międzynarodowego." Doctoral thesis, 2015. https://depotuw.ceon.pl/handle/item/1292.
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Wybór prawa w prawie kolizyjnym stanowi odzwierciedlenie autonomii woli w prawie materialnym, a jego ograniczenia zazwyczaj dochodzą do głosu w sprawach, które na gruncie prawa materialnego regulowane są za pomocą przepisów imperatywnych i semiimperatywnych. W prawie prywatnym międzynarodowym strony mają także inne możliwości wpływania na prawo właściwe dla stosunków prawnych, w których uczestniczą, jednak tylko dokonując wyboru prawa czynią to w sposób bezpośredni.
Wybór prawa należy zdefiniować jako czynność prawną prawa prywatnego międzynarodowego, uregulowaną zarówno w przepisach merytorycznych należących do regulacji bezpośredniej, jak i w typowych normach kolizyjnych.
Wybór prawa pełni różnorodne funkcje w obrocie gospodarczym. Przede wszystkim, dzięki jednoznacznemu wskazaniu prawa właściwego, pozwala pozbyć się niepewności co do porządku prawnego, któremu podlegać będą ewentualne spory wynikające z tego stosunku. Razem z klauzulą wyboru sądu może przyczynić się do zwiększenia efektywności postępowania. Na gruncie prawa rodzinnego bywa również sposobem wyrażenia tożsamości kulturowej stron.
Na system prawa prywatnego międzynarodowego obowiązujący w Polsce składają się normy pochodzące z różnych źródeł prawa, przede wszystkim z rozporządzeń unijnych oraz z ustawy krajowej o prawie prywatnym międzynarodowym. Oprócz tego na polski system prawa kolizyjnego składają się normy zawarte w wielostronnych i bilateralnych umowach międzynarodowych, jednak w żadnej z nich nie przewidziano szczególnych możliwości wyboru prawa. Prawo prywatne międzynarodowe obowiązujące w Polsce charakteryzuje się obecnie dużą dynamiką i zmiennością. Z jednej strony dość niedawno uchwalono całkiem nową ustawę regulującą całokształt tej gałęzi prawa, z drugiej zaś coraz więcej grup stosunków prywatnoprawnych podlega kolizyjnoprawnemu unormowaniu unijnemu.
Ograniczenia wyboru prawa zostały zawarte w trzech rodzajach przepisów. Niektóre wynikają z norm merytorycznych regulacji bezpośredniej, inne stanowią elementy norm kolizyjnych pierwszego stopnia, jeszcze zaś inne zostały wyrażone w metanormach kolizyjnych. Skutkiem zastosowania niektórych ograniczeń jest nieważność wyboru dokonanego przez strony. W ten sposób funkcjonują ograniczenia wyboru do katalogu określonych porządków prawnych, ograniczenia personalne oraz ograniczenia związane ze szczególną formą wyboru prawa. Z pozostałych sposobów limitowania kolizyjnoprawnej autonomii woli stron wynika natomiast wyłączenie pewnego obszaru prawa wybranego i zastosowanie w jego miejsce innego prawa właściwego. W tej grupie ograniczeń wyróżnić można ograniczenia wprowadzone ze względu na potrzebę ochrony słabszej strony stosunku prawnego, ograniczenia ustanowione ze względu na prawa osób trzecich, a także ograniczający wpływ przepisów wymuszających swoje zastosowanie oraz klauzuli porządku publicznego na wybór prawa.
W krajowej ustawie o prawie prywatnym międzynarodowym wybór prawa został uznany za instytucję części ogólnej prawa kolizyjnego. Podobne tendencje można dostrzec w prawie Unii Europejskiej, jednak na jego gruncie wybór prawa nie stanowi jeszcze instytucji części ogólnej prawa prywatnego międzynarodowego, przede wszystkim dlatego, że poszczególne grupy stosunków prawnych uregulowano w oddzielnych dyrektywach sektorowych. Wybór prawa stanowi natomiast jedną z podstawowych zasad prawa kolizyjnego, przede wszystkim w zakresie zobowiązań umownych.The choice of applicable law reflects the scope of party autonomy in the substantive law. Consequently, its limitations respond to cases in which the substantive law mandatory and semimandatory provisions are applied. In private international law the parties have more possibilities to influence the applied law, but only choosing the applicable law they can do it in a direct way. The choice of applicable law should be consented by the parties, as it is a kind of legal act. The exercising of freedom of choice is regulated whether directly by substantive provisions or indirectly by traditional rules of conflict of laws. The freedom of choice performs a number of functions. First and foremost it is aimed at prevention of the unpredictability of the law which should be applied to the particular case. Similarly to the jurisdiction clause the choice of applicable law can contribute towards a more efficient legal court proceedings. Within the scope of family law it can also reflect the need to express one’s cultural identity. The Polish system of private international law is constructed with provisions issued in various classes of legal instruments, mainly in the EU regulations and in the domestic Act on Private International Law. The system is complemented with norms of multilateral and bilateral international conventions which do not express any rights to exercise the freedom of choice. The conflict of laws in Poland can be described as dynamic and unstable. On the one hand the Act on Private International Law is quite recent, on the other hand more and more areas of private legal relations are coming under the European regulations. The limitations of freedom of choice have been expressed in three kinds of provisions: the substantial provisions and the rules on conflict of laws of the first and the second degree. The defiance to some limitations cause the invalidity of the clause of choice of applicable law. It concerns the closed catalogue of laws which the parties are allowed to choose among, the personal limitations and the special requirements on the form of choice. Other limitations, by contrast, have the effect of eliminating some provisions of the chosen applicable law and replacing them with norms of other law. These are: limitations introduced with the aim to protect the weaker party of a legal relation, limitations targeted at the interests of the third party and the restrictive impact on the applied law of the international mandatory provisions and public policy. In the Polish Act on Private International Law the freedom of choice has become an general part institution. In the EU regulations the corresponding role is not yet so explicit due to the dispersion of rules of conflict of laws, but in both keystones of the Polish system of private international law the freedom of choice is gradually becoming one of the main principles of conflict of laws.
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Almeida, Meire Lourdes Pereira. "Relações de poder na escola: desafios, possibilidades e limites da gestão participativa." Master's thesis, 2017. http://hdl.handle.net/10284/5947.
Full textAbstract:
Análise das relações de poder em uma escola municipal de São Luís-MA, em que se procurou, através dos instrumentos legais e metodológicos, identificar os desafios a que a escola está exposta, suas possibilidades diante desses desafios e os limites que a própria legislação engendra para a execução de uma gestão participativa no âmbito escolar. A pesquisa fundamenta-se em autores que tratam dessas relações de poder, como Foucault, Max Weber e Bourdieu para o desenvolvimento da problemática. Usando-se métodos de cunho qualitativo e quantitativo, procurou-se conhecer a rotina da escola no que tange às relações de poder que permeiam esse ambiente e concluiu-se que nessa escola existem dois tipos de poderes: um poder implícito e outro explícito, que de certa forma, se complementam e contribuem para que o processo educativo se consolide, visto que, na sociedade em que se vive, os indivíduos estão ainda convictos de que sem a presença do poder explícito as instituições não evoluem, sendo este frequente em todos os setores. No que diz respeito aos desafios, limites e às possiblidades da gestão participativa, nessa escola existem limites impostos pela gestão que inviabilizam a participação democrática dos sujeitos escolares e as possibilidades, conforme o estudo de campo feito, existem desde que seja trabalhado a superação dos entraves de cunho administrativo, fato que denota um grande desafio para todos os implicados no contexto, pois o exagero burocrático e hierárquico impede a flexibilidade, criatividade e ação crítica construtiva, componentes fundamentais de uma gestão participativa.Analysis of power relations in a public school in São Luis looking through the legal and methodological tools to identify the challenges that the school is exposed, its possibilities on these challenges and limits that the legislation itself engenders for the implementation of a management participatory in schools. To use either of these authors dealing with power relations as Foucault, Max Weber and Bourdieu to develop the problem. Using methods of quantitative and qualitative nature, we seek to know the routine of the school regarding the power relations that permeate this environment. We conclude that in this school there are two types of powers: an implicit and the other explicit power that somehow complement each other and contribute to the educational process is consolidated in our society since individuals are still convinced that without the presence of the explicit power institutions do not evolve, which is common for all sectors of the same. Regarding the challenges, possibilities and limits of participatory management managed this school there are limits imposed by management that prevent democratic participation of school subjects, the possibilities as field study done around since overcome obstacles of administrative nature are worked a fact which denotes a big challenge for all involved in the context because the bureaucratic and hierarchical exaggeration prevents the flexibility, creativity and action constructive criticism fundamental components of a participatory management.
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Fehmel, Thilo. "Staatshandeln zwischen betrieblicher Beschäftigungssicherung und Tarifautonomie: die adaptive Transformation der industriellen Beziehungen durch den Staat." 2006. https://ul.qucosa.de/id/qucosa%3A14908.
Full textAbstract:
In demokratischen politischen Systemen haben staatliche Akteure darauf zu achten, die legitimatorische und die ökonomische Basis ihres Handelns stabil und miteinander vereinbar zu halten. Dieses Interesse des politischen Systems an sich selbst wird damit zur Grundlage all seiner Steuerungsbemühungen. Aufgrund der strukturellen Abhängigkeit des Staates von einer funktionsfähigen Ökonomie ist staatlichen Akteuren auch an der Steuerung der industriellen Beziehungen gelegen – zumindest dann, wenn sie in Rezessionsphasen das Handeln der Tarifverbände als dysfunktional bewerten. Unmittelbarer staatlicher Intervention und Steuerung steht aber das grundgesetzlich verankerte Konstrukt der Tarifautonomie entgegen. Das bedeutet jedoch nicht, dass dem Staat alle Steuerungsmöglichkeiten genommen sind. Am Beispiel der staatlichen Forcierung betrieblicher Bündnisse für Arbeit wird gezeigt, dass der Staat über den Umweg der indirekten, diskursiven Steuerung in der Lage ist, gesellschaftliche Akteure zur Selbststeuerung anzuregen. Im Ergebnis lässt sich eine Transformation der Strukturen der industriellen Beziehungen beobachten, die zu einem wesentlichen Teil nicht von den Tarifverbänden, sondern vom Staat ausgeht.:Einführung; Inhalte und Verbreitung betrieblicher Bündnisse für Arbeit; Das Interesse des Staates an betrieblichen Bündnissen für Arbeit; Daten: Das Interesse des Staates am Diskurs über betriebliche Bündnisse; Das Desinteresse des Staates an betrieblichen Bündnissen?; FazitIn political systems that are liberal and democratic state actors must keep the legitimating and economic basis of their actions stable and compatible with each other. This interest of political systems in themselves becomes the basis of all their intervention policies. Due to the structural dependency of the state from a functioning economy state actors also attempt to regulate industrial relations; at least during periods of recession in which free collective bargaining is regarded as dysfunctional. Direct state intervention and regulation are restricted by the right of free collective bargaining, which is guaranteed by the German constitutional law. Notwithstanding this does not mean that the state has lost all its possibilities of regulation and control. The example of the state’s demand, and to a certain extent enforcement, of internal alliances for jobs shows that the state is very well in the position to stimulate collective actors to self-regulation. This stimulation takes place through a discursive, indirect intervention. As a result of these shifts and changes a structural transformation of industrial relations takes place, which, to a great extent, is not initiated by employers’ and employee’s associations, but by the state.:Einführung; Inhalte und Verbreitung betrieblicher Bündnisse für Arbeit; Das Interesse des Staates an betrieblichen Bündnissen für Arbeit; Daten: Das Interesse des Staates am Diskurs über betriebliche Bündnisse; Das Desinteresse des Staates an betrieblichen Bündnissen?; Fazit
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Porter, Marlien. "A sociological review and application of Illich's theory of iatrogenesis with specific reference to problems concerning the aged." Diss., 1994. http://hdl.handle.net/10500/15799.
Full textAbstract:
Illich, a critic of the medical profession in industrial societies,
researched the "damage done" by the medical establishment on three levels.
This study presents an application of Illich's three-level theory of
iatrogenesis to a sample of elderly people in old-age homes in and around
Pretoria. Fifty in-depth interviews were conducted with old-age home
residents. In the focus on clinical iatrogenesis, the aspect of
defenceless patients was investigated. With regard to social iatrogenesis,
focus was on the interpretation of attitudes revealing an increased medical
dependency. Cultural iatrogenesis, which involves the influence of values
and norms on thinking patterns, is investigated in terms of the impact of
institutionalisation on the autonomy, independence and personal
responsibility of residents. Illich's solution to the problem of medicalisation
is to be found in the de-bureaucratisation and de-industrialisation
of society. Based on the assumptions of critical theory, the emancipation
of the individual is suggested as a basis of Illich's proposed structural
societal changesM.A. (Sociology)