823 resultados para concept of derivative legal interpretation
Resumo:
This Article examines the adverse impact theory of employment discrimination under Title VII. The author begins by discussing the development of adverse impact in the case law, and by scrutinizing its theoretical underpinnings. He demonstrates that Congress did not intend to mandate adoption of adverse impact theory when it established Title VII. The author then argues that the Courts have exceeded their authority under Title VII by embracing the theory of adverse impact. He concludes that the courts should therefore return to a narrower theory of employment discrimination, namely, a theory based on the legal concept of “intent.”
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The German philosopher G.W.F.Hegel (1770–1831) is best known for his idealistic system philosophy, his concept of spirit [Geist] and for his dictum that the existing and the rational overlap. This thesis offers a new perspective: it examines the working of the concept ‘love’ in Hegel’s philosophy by looking at the contexts and function he puts it to, from his earliest writings to the very last lectures he gave. The starting point of the inquiry is that he applied the concept Liebe to different contexts for different purposes, but each time to provide an answer to a specific philosophical problem. His formulation, reformulation and use of ‘love’ give possible solutions to problems the solving of which was crucial to the development of his thought as a whole. The study is divided into three parts, each analysing the different problems and solutions to which Hegel applied the concept of love. The first part, "Love, morality and ethical life", examines these interconnected themes in Hegel’s early work. The main questions he addressed during this period concerned how to unite Kant’s philosophy and the Greek ideal of the good life. In this context, the concept ‘love’ did three things. First, it served to formulate his grounding idea of the relation between unity and difference, or the manifold. Secondly, it was the key to his attempt to base an ideal folk religion on Christianity interpreted as a religion of love. Finally, it provided the means to criticise Kant’s moral philosophy. The question of the moral value of love helped Hegel to break away from Kant’s thought and develop his own theory about love and ethical life. The second part of the study, "Love and the political realm", considers the way 'Liebe' functions in connection with questions concerning the community and political life in Hegel’s work. In addition to questioning the universal applicability of the concept of recognition as a key to his theory of social relations, the chapters focus on gender politics and the way he conceptualised the gender category ‘woman’ through the concept ‘love’. Another line of inquiry is the way the figure of Antigone was used to conceptualise the differentiated spheres of action for men and women, and the part ‘love’ played in Hegel’s description of Antigone’s motives. Thirdly, Hegel’s analogy of the family and the state and the way ‘love’ functions in an attempt to promote understanding of the relation between citizens and the state are examined. The third and final part of the study, "Love as absolute spirit", focuses on ‘love’ within Hegel’s systemic thought and the way he continued to characterise Geist through the language of Liebe up until and including his very last works. It is shown how Liebe functions in his hierarchical organisation of the domains of art, religion and philosophy, and how both art and religion end up in similar structural positions with regard to philosophy. One recurrent theme in the third part is Hegel’s complex relation to Romantic thought. Another line of investigation is how he reconstructed Christianity as a religion of love in his mature work. In striking contrast to his early thought, in his last works Hegel introduced a new concept of love that incorporated negativity, and that could also function as the root of political action.
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This chapter provides a critical legal geography of outer Space, charting the topography of the debates and struggles around its definition, management, and possession. As the emerging field of critical legal geography demonstrates, law is not a neutral organiser of space, but is instead a powerful cultural technology of spatial production. Drawing on legal documents such as the Outer Space Treaty and the Moon Treaty, as well as on the analogous and precedent-setting legal geographies of Antarctica and the deep seabed, the chapter addresses key questions about the legal geography of outer Space, questions which are of growing importance as Space’s available satellite spaces in the geostationary orbit diminish, Space weapons and mining become increasingly viable, Space colonisation and tourism emerge, and questions about Space’s legal status grow in intensity. Who owns outer Space? Who, and whose rules, govern what may or may not (literally) take place there? Is the geostationary orbit the sovereign property of the equatorial states it supertends, as these states argued in the 1970s? Or is it a part of the res communis, or common property of humanity, which currently legally characterises outer Space? Does Space belong to no one, or to everyone? As challenges to the existing legal spatiality of outer Space emerge from spacefaring states, companies, and non-spacefaring states, it is particularly critical that the current spatiality of Space is understood and considered.
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The aim of this study was to identify and describe the types of errors in clinical reasoning that contribute to poor diagnostic performance at different levels of medical training and experience. Three cohorts of subjects, second- and fourth- (final) year medical students and a group of general practitioners, completed a set of clinical reasoning problems. The responses of those whose scores fell below the 25th centile were analysed to establish the stage of the clinical reasoning process - identification of relevant information, interpretation or hypothesis generation - at which most errors occurred and whether this was dependent on problem difficulty and level of medical experience. Results indicate that hypothesis errors decrease as expertise increases but that identification and interpretation errors increase. This may be due to inappropriate use of pattern recognition or to failure of the knowledge base. Furthermore, although hypothesis errors increased in line with problem difficulty, identification and interpretation errors decreased. A possible explanation is that as problem difficulty increases, subjects at all levels of expertise are less able to differentiate between relevant and irrelevant clinical features and so give equal consideration to all information contained within a case. It is concluded that the development of clinical reasoning in medical students throughout the course of their pre-clinical and clinical education may be enhanced by both an analysis of the clinical reasoning process and a specific focus on each of the stages at which errors commonly occur.
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This study analyses Augustine s concept of concupiscentia, or evil desire (together with two cognate terms, libido and cupiditas) in the context of his entire oeuvre. By the aid of systematic analysis, the concept and its development is explored in four distinct ways. It is claimed that Augustine used the concept of concupiscentia for several theological purposes, and the task of the study is to represent these distinct functions, and their connections to Augustine s general theological and philosophical convictions. The study opens with a survey on terminology. A general overview of the occurrences of the negatively connoted words for desire in Latin literature precedes a corresponding examination of Augustine s own works. In this introductory chapter it is shown that, despite certain preferences in the uses of the words, a sufficient degree of synonymy reigns so as to allow an analysis of the concept without tightly discriminating between the terms. The theological functions of concupiscentia with its distinct contexts are analysed in separate chapters. The function of concupiscentia as a divine punishment is explored first (Ch 3). It is seen how Augustine links together concupiscentia and ideas about divine justice, and finally suggests that in the inordinate, psychologically experienced sexual desire, the original theological disobedience of Adam and Eve can be perceived. Augustine was criticized for this solution already in his own times, and the analysis of the function of concupiscentia as a divine punishment ends in a discussion on the critical response of punitive concupiscentia by Julian of Aeclanum. Augustine also attached to concupiscentia another central theological function by viewing evil desire as an inward originating cause for all external evil actions. In the study, this function is analysed by surveying two formally distinct images of evil desire, i.e. as the root (radix) of all evil, and as a threefold (triplex) matrix of evil actions (Ch 4). Both of these images were based on a single verse of the Bible (1 Jn 2, 16 and 1 Tim 6, 10). This function of concupiscentia was formed both parallel to, and in answer to, Manichaean insights into concupiscentia. Being familiar with the traditional philosophical discussions on the nature and therapy of emotions, Augustine situated concupiscentia also into this context. It is acknowledged that these philosophical traditions had an obvious impact into his way of explaining psychological processes in connection with concupiscentia. Not only did Augustine implicitly receive and exploit these traditions, but he also explicitly moulded and criticized them in connection with concupiscentia. Eventually, Augustine conceives the philosophical traditions of emotions as partly useful but also partly inadequate to deal with concupiscentia (Ch 5). The role of concupiscentia in connection to divine grace and Christian renewal is analysed in the final chapter of the study. Augustine s gradual development in internalizing the effects of concupiscentia also into the life of a baptized Christian are elucidated, as are the strong limitations and mitigations Augustine makes to the concept when attaching it into the life under grace (sub gratia). A crucial part in the development of this function is played by Augustine s changing interpretation of Rom 7, and the way concupiscentia appears in Augustine s readings of this text is therefore also analysed. As a result of the analysis of these four distinct functions and contexts of concupiscentia, it is concluded that Augustine s concept of concupiscentia is fairly tightly and coherently connected to his views of central theological importance. Especially the functions of concupiscentia as a punishment and the function of concupiscentia in Christian renewal were both tightly interwoven into Augustine s view of God s being and God s grace. The study shows the importance of reading Augustine s discussions on evil desire with a constant awareness of their role in their larger context, that is, of their function in each situation. The study warns against too simplistic and unifying readings of Augustine s concupiscentia, emphasizing the need to acknowledge both the necessitating, sinful aspects of concupiscentia, and the domesticated features of concupiscentia during Christian renewal.
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The Master’s thesis examines historical memory of the Polish minority members in Lithuania with regard to how their interpretation of the common Polish-Lithuanian history reiterates or differs from the official Polish and Lithuanian narratives conveyed by the school textbooks. History teaching in high schools carries a crucial state-supported role of “identity building policies” – it maintains a national narrative of memory, which might be exclusive to minorities and their peculiar understanding of history. Lithuanians Poles, in this regard, represent a national minority, which is exposed to two conflicting national narratives of the common past – Polish and Lithuanian. As members of the Polish nation, their understanding of the common Polish-Lithuanian history is conditioned by the Polish historical narrative, acquired as part of the collective memory of the family and/or different minority organizations. On the other hand, they encounter Lithuanian historical narrative of the Polish-Lithuanian past throughout the secondary school history education, where the curriculum, even if taught in Polish, largely represents the Lithuanian point of view. The concept of collective memory is utilized to refer to collective representations of national memory (i.e. publicly articulated narratives and images of collective past in history textbooks) as well as to socially framed individual memories (i.e. historical memory of minority members, where individual remembering is framed by the social context of their identity). The thesis compares the official national historical narratives in Lithuania and Poland, as conveyed by the Polish and Lithuanian history textbooks. The consequent analysis of qualitative interviews with the Polish minority members in Lithuania offers insights into historical memory of Lithuanian Poles and its relation to the official Polish and Lithuanian national narratives of the common past. Qualitative content analysis is applied in both parts of the analysis. The narratives which emerge from the interview data could be broadly grouped into two segments. First, a more pronounced view on the past combines the following elements: i) emphasis on the value of multicultural and diverse past of Lithuania, ii) contestation of “Lithuanocentricity” of the Lithuanian narrative and iii) rejection of the term “occupation”, based on the cultural presuppositions – the dominant position of Polish culture and language in the Vilnius region, symbolic belonging and “Lithuanianness” of the local Poles. While the opposition to the term of “occupation” is in accord with the official Polish narrative conveyed by the textbooks, the former two elements do not neatly adhere to either Polish or Lithuanian textbook narratives. They should rather be considered as an expression of claims for inclusion of plural pasts into Lithuanian collective memory and hence as claims for symbolic enfranchisement into the Lithuanian “imagined community”. The second strand of views, on the other hand, does not exclude assertions about the historically dominant position of Polish culture in Lithuania, but at the same time places more emphasis on the political and historical continuity of the Lithuanian state and highlights a long-standing symbolic connectedness of Vilnius and Lithuania, thus, striking a middle way between the Polish and Lithuanian interpretations of the past.
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States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.
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The modern subject is what we can call a self-subjecting individual. This is someone in whose inner reality has been implanted a more permanent governability, a governability that works inside the agent. Michel Foucault s genealogy of the modern subject is the history of its constitution by power practices. By a flight of imagination, suppose that this history is not an evolving social structure or cultural phenomenon, but one of those insects (moth) whose life cycle consists of three stages or moments: crawling larva, encapsulated pupa, and flying adult. Foucault s history of power-practices presents the same kind of miracle of total metamorphosis. The main forces in the general field of power can be apprehended through a generalisation of three rationalities functioning side-by-side in the plurality of different practices of power: domination, normalisation and the law. Domination is a force functioning by the rationality of reason of state: the state s essence is power, power is firm domination over people, and people are the state s resource by which the state s strength is measured. Normalisation is a force that takes hold on people from the inside of society: it imposes society s own reality its empirical verity as a norm on people through silently working jurisdictional operations that exclude pathological individuals too far from the average of the population as a whole. The law is a counterforce to both domination and normalisation. Accounting for elements of legal practice as omnihistorical is not possible without a view of the general field of power. Without this view, and only in terms of the operations and tactical manoeuvres of the practice of law, nothing of the kind can be seen: the only thing that practice manifests is constant change itself. However, the backdrop of law s tacit dimension that is, the power-relations between law, domination and normalisation allows one to see more. In the general field of power, the function of law is exactly to maintain the constant possibility of change. Whereas domination and normalisation would stabilise society, the law makes it move. The European individual has a reality as a problem. What is a problem? A problem is something that allows entry into the field of thought, said Foucault. To be a problem, it is necessary for certain number of factors to have made it uncertain, to have made it lose familiarity, or to have provoked a certain number of difficulties around it . Entering the field of thought through problematisations of the European individual human forms, power and knowledge one is able to glimpse the historical backgrounds of our present being. These were produced, and then again buried, in intersections between practices of power and games of truth. In the problem of the European individual one has suitable circumstances that bring to light forces that have passed through the individual through centuries.
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Trafficking in human beings has become one of the most talked about criminal concerns of the 21st century. But this is not all that it has become. Trafficking has also been declared as one of the most pressing human rights issues of our time. In this sense, it has become a part of the expansion of the human rights phenomenon. Although it is easy to see that the crime of trafficking violates several of the human rights of its victims, it is still, in its essence, a fairly conventional although particularly heinous and often transnational crime, consisting of acts between private actors, and lacking, therefore, the vertical effect associated traditionally with human rights violations. This thesis asks, then, why, and how, has the anti-trafficking campaign been translated in human rights language. And even more fundamentally: in light of the critical, theoretical studies surrounding the expansion of the human rights phenomenon, especially that of Costas Douzinas, who has declared that we have come to the end of human rights as a consequence of the expansion and bureaucratization of the phenomenon, can human rights actually bring salvation to the victims of trafficking? The thesis demonstrates that the translation process of the anti-trafficking campaign into human rights language has been a complicated process involving various actors, including scholars, feminist NGOs, local activists and global human rights NGOs. It has also been driven by a complicated web of interests, the most prevalent one the sincere will to help the victims having become entangled with other aims, such as political, economical, and structural goals. As a consequence of its fragmented background, the human rights approach to trafficking seeks still its final form, consisting of several different claims. After an assessment of these claims from a legal perspective, this thesis concludes that the approach is most relevant regarding the mistreatment of victims of trafficking in the hands of state authorities. It seems to be quite common that authorities have trouble identifying the victims of trafficking, which means that the rights granted to themin international and national documents are not realized in practice, but victims of trafficking are systematically deported as illegal immigrants. It is argued that in order to understand the measures of the authorities, and to assess the usefulness of human rights, it is necessary to adopt a Foucauldian perspective and to observe the measures as biopolitical defence mechanisms. From a biopolitical perspective, the victims of trafficking can be seen as a threat to the population a threat that must be eliminated either by assimilating them to the main population with the help of disciplinary techniques, or by excluding them completely from the society. This biopolitical aim is accomplished through an impenetrable net of seemingly insignificant practices and discourses that not even the participants are aware of. As a result of these practices and discourses, trafficking victims only very few of fit the myth of the perfect victim, produced by biopolitical discourses become invisible and therefore subject to deportation as (risky) illegal immigrants, turning them into bare life in the Agambenian sense, represented by the homo sacer, who cannot be sacrificed, yet does not enjoy the protection of the society and its laws. It is argued, following Jacques Rancière and Slavoj i ek, that human rights can, through their universality and formal equality, provide bare life the tools to formulate political claims and therefore utilize their politicization through their exclusion to return to the sphere of power and politics. Even though human rights have inevitably become entangled with biopolitical practices, they are still perhaps the most efficient way to challenge biopower. Human rights have not, therefore, become useless for the victims of trafficking, but they must be conceived as a universal tool to formulate political claims and challenge power .In the case of trafficking this means that human rights must be utilized to constantly renegotiate the borders of the problematic concept of victim of trafficking created by international instruments, policies and discourses, including those that are sincerely aimed to provide help for the victims.
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The study attempts a reception-historical analysis of the Maccabean martyrs. The concept of reception has fundamentally to do with the re-use and interpretation of a text within new texts. In a religious tradition, certain elements become re-circulated and thus their reception may reflect the development of that particular tradition. The Maccabean martyrs first appear in 2 Maccabees. In my study, it is the Maccabean martyr figures who count as the received text; the focus is shifted from the interrelations between texts onto how the figures have been exploited in early Christian and Rabbinic sources. I have divided my sources into two categories and my analysis is in two parts. First, I analyze the reception of the Maccabean martyrs within Jewish and Christian historiographical sources, focusing on the role given to them in the depictions of the Maccabean Revolt (Chapter 3). I conclude that, within Jewish historiography, the martyrs are given roles, which vary between ultimate efficacy and marginal position with regard to making a historical difference. In Christian historiographical sources, the martyrs role grows in importance by time: however, it is not before a Christian cult of the Maccabean martyrs has been established, that the Christian historiographies consider them historically effective. After the first part, I move on to analyze the reception in sources, which make use of the Maccabean martyrs as paradigmatic figures (Chapter 4). I have suggested that the martyrs are paradigmatic in the context of martyrdom, persecution and destruction, on one hand, and in a homiletic context, inspiring religious celebration, on the other. I conclude that, as the figures are considered pre-Christian and biblical martyrs, they function well in terms of Christian martyrdom and have contributed to the development of its ideals. Furthermore, the presentation of the martyr figures in Rabbinic sources demonstrates how the notion of Jewish martyrdom arises from experiences of destruction and despair, not so much from heroic confession of faith in the face of persecution. Before the emergence of a Christian cult of the Maccabean martyrs, their identity is derived namely from their biblical position. Later on, in the homiletic context, their Jewish identity is debated and sometimes reconstructed as fundamentally Christian , despite of their Jewish origins. Similar debate about their identity is not found in the Rabbinic versions of their martyrdom and nothing there indicates a mutual debate between early Christians and Jews. A thematic comparison shows that the Rabbinic and Christian cases of reception are non-reliant on each other but also that they link to one another. Especially the scriptural connections, often made to the Maccabean mother, reveal the similarities. The results of the analyses confirm that the early history of Christianity and Rabbinic Judaism share, at least partly, the same religious environment and intertwining traditions, not only during the first century or two but until Late Antiquity and beyond. More likely, the reception of the Maccabean martyrs demonstrates that these religious traditions never ceased to influence one another.
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A brief overview of our group research activities is given and the concept of donor acceptor is described for the development of conjugated polymers for optoelectronic devices. In particular, a new family of conjugated polymers based on dithienopyrrole has been synthesized to demonstrate the concept of donor-acceptor. The dithienopyrrole was coupled to benzodithiophene via Stille coupling to obtain two low band gap polymers P5a and P5b having -C18H37 and -2-ethylhexyl alkyl chain respectively. Both the polymers exhibit absorption within the solar spectrum with an optical band gap below 2 eV. Atomic force microscopy revealed that both the polymers form smooth film with roughness of 2.4 nm and photoluminescence measurement of polymer/fullerene derivative blend film suggests effective dissociation of exciton.
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Resumen: De acuerdo con el autor, la capacidad del alma de conocerse a sí misma está en la raíz del problema de la persona. Más aún, el entendimiento deber ser interpretado antológicamente como una actividad del alma. Se lleva a cabo un análisis del concepto de persona en algunos filósofos medievales y modernos. También hay referencias a pensadores contemporáneos. El autor sostiene que la noción que Spaemann introduce, considerando la intencionalidad como meramente un sentimiento o negatividad, es insuficiente. El mencionado sentimiento subjetivo es idéntico al concepto de ‘intuición experienciante’ en la fenomenología; pero es insuficiente para permitirnos comprender la esencia de la persona como una entidad espiritual. El autor afirma que cada ser humano debería ser reconocido, no sólo como una creatura racional, sino también como persona, en especial cuando nos referimos a este ser humano o a esta alma. Agrega que las consecuencias prácticas de esta perspectiva son de gran importancia.
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Hopanoids are a class of sterol-like lipids produced by select bacteria. Their preservation in the rock record for billions of years as fossilized hopanes lends them geological significance. Much of the structural diversity present in this class of molecules, which likely underpins important biological functions, is lost during fossilization. Yet, one type of modification that persists during preservation is methylation at C-2. The resulting 2-methylhopanoids are prominent molecular fossils and have an intriguing pattern over time, exhibiting increases in abundance associated with Ocean Anoxic Events during the Phanerozoic. This thesis uses diverse methods to address what the presence of 2-methylhopanes tells us about the microbial life and environmental conditions of their ancient depositional settings. Through an environmental survey of hpnP, the gene encoding the C-2 hopanoid methylase, we found that many different taxa are capable of producing 2-methylhopanoids in more diverse modern environments than expected. This study also revealed that hpnP is significantly overrepresented in organisms that are plant symbionts, in environments associated with plants, and with metabolisms that support plant-microbe interactions; collectively, these correlations provide a clue about the biological importance of 2-methylhopanoids. Phylogenetic reconstruction of the evolutionary history of hpnP revealed that 2-methylhopanoid production arose in the Alphaproteobacteria, indicating that the origin of these molecules is younger than originally thought. Additionally, we took genetic approach to understand the role of 2-methylhopanoids in Cyanobacteria using the filamentous symbiotic Nostoc punctiforme. We found that hopanoids likely aid in rigidifying the cell membrane but do not appear to provide resistance to osmotic or outer membrane stressors, as has been shown in other organisms. The work presented in this thesis supports previous findings that 2-methylhopanoids are not biomarkers for oxygenic photosynthesis and provides new insights by defining their distribution in modern environments, identifying their evolutionary origin, and investigating their role in Cyanobacteria. These efforts in modern settings aid the formation of a robust interpretation of 2-methylhopanes in the rock record.
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This paper relies on the concept of next generation matrix defined ad hoc for a new proposed extended SEIR model referred to as SI(n)R-model to study its stability. The model includes n successive stages of infectious subpopulations, each one acting at the exposed subpopulation of the next infectious stage in a cascade global disposal where each infectious population acts as the exposed subpopulation of the next infectious stage. The model also has internal delays which characterize the time intervals of the coupling of the susceptible dynamics with the infectious populations of the various cascade infectious stages. Since the susceptible subpopulation is common, and then unique, to all the infectious stages, its coupled dynamic action on each of those stages is modeled with an increasing delay as the infectious stage index increases from 1 to n. The physical interpretation of the model is that the dynamics of the disease exhibits different stages in which the infectivity and the mortality rates vary as the individual numbers go through the process of recovery, each stage with a characteristic average time.
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The success of fisheries management depends very much on the effectiveness of the legal framework in use. A historical perspective of the fisheries of Lake Victoria, Uganda, suggests that fisheries management has not been very successful. This chapter reviews the legal framework with a view to assessing its impact on fisheries management on Lake Victoria, Uganda