scholarly journals Legal Translation Versus Legal Interpretation. A Legal-Theoretical Perspective

2021 ◽  
Author(s):  
Mateusz Zeifert ◽  
Zygmunt Tobor
Keyword(s):  
Legal Theory ◽  
Theoretical Perspective ◽  
Detailed Comparison ◽  
Wide Sense ◽  
Legal Interpretation ◽  
Narrow Sense ◽  
Legal Translation ◽  
The Subject ◽  
The Common ◽  
The Relationship

AbstractIn this article we investigate the relationship between legal translation and legal interpretation. The common wisdom is that these activities are closely related, but the nature of that relationship remains disputable. We adopt the perspective of legal theory—as opposed to the perspective of translation studies—which seems to be underrepresented in the literature of the subject. We start with distinguishing between the two notions of legal interpretation: the wide sense (interpretation as understanding) and the narrow sense (interpretation as problem solving). We argue that the relationship between legal translation and legal interpretation changes significantly depending on the notion of legal interpretation that is assumed. The wide sense is often assumed by translation scholars and it renders legal interpretation as a necessary prerequisite for legal translation. Jurists, on the other hand, usually assume the narrow sense which renders legal interpretation and legal translation as two distinct activities with some shared features. We then focus on four issues of legal interpretation in the narrow sense: the types of legal interpretive problems, the creation of legal interpretive problems, the methods of legal interpretation, the resolution of legal interpretive problems. We conclude with a detailed comparison of legal translation and legal interpretation in the context of those four issues.

The Trade Mark, Other Product Designations, and Goodwill

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Subject Matter ◽  
Common Law ◽  
Trade Mark ◽  
Geographical Indication ◽  
Passing Off ◽  
Rights Protection ◽  
Essential Properties ◽  
The Subject ◽  
The Common ◽  
The Relationship

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.

scholarly journals The Forms of Criminal Prosecution

Legal Concept ◽  
2021 ◽  
pp. 167-175
Author(s):  
Ilya Dikarev ◽  
◽  
Sailaubek Baymanov ◽  
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Prosecution ◽  
Legal Interpretation ◽  
Scientific Methods ◽  
Theoretical Position ◽  
Analysis And Synthesis ◽  
General Scientific ◽  
The Subject ◽  
The Common

Introduction: the paper discusses the possibility of differentiating the forms of criminal prosecution. The critical analysis is subject to the widespread position in the science of criminal procedure that the forms of criminal prosecution are suspicion and accusation. This point of view is based on the conclusion that the content of criminal prosecution varies depending on the degree of proof of the guilt of the person subject to criminal prosecution. Concerning compliance with the principle of adversarial parties, the theoretical position is also evaluated, according to which one of the forms of criminal prosecution is conviction. The question of the grounds for differentiating the forms of criminal prosecution is studied. Purpose: the confirming the unified nature of the criminal prosecution carried out during the pretrial proceedings, regardless of the procedural position of the person accused of committing the crime. Methods: the paper uses the general scientific methods of analysis and synthesis, a systematic approach, as well as specific scientific methods: legal interpretation and logical-legal. The methodological framework was the dialectical method. Results: the study of the common position in the science of criminal procedure, according to which criminal prosecution at different stages of its implementation consistently takes the forms of suspicion and accusation, showed its inconsistency. From the standpoint of philosophy, the content always has a determining value, and the form is always determined. Accordingly, to establish a change in the form of criminal prosecution, it is necessary to make sure that the content of this activity changes. However, the degree of proof of the person’s involvement in the crime is not reflected in the content of the accusatory activity, it remains the same. Therefore, suspicion and accusation do not form the independent forms of criminal prosecution. At the same time, the differentiation of the forms of criminal prosecution is possible, but on different grounds. Conclusions: the differentiation of the forms of criminal prosecution should be made depending on, first, the organization of procedural activities that determine the role and powers of the subject of criminal prosecution in the process of proof; secondly, the procedural status of the participant in the criminal process on the part of the prosecution and, thirdly, the content of the fact in issue.

1. The historical origins of the trust

2019 ◽  
pp. 1-13
Author(s):  
JE Penner
Keyword(s):  
Common Law ◽  
The Core ◽  
Administrative Power ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Historical Origins

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter traces the historical roots of the trust. The law of trusts is the offspring of a certain English legal creature known as ‘equity’. Equity arose out of the administrative power of the medieval Chancellor, who was at the time the King’s most powerful minister. The nature of equity’s jurisdiction and its ability to provide remedies unavailable at common law, the relationship between equity and the common law and the ‘fusion’ of law and equity, and equity’s creation of the use, and then the trust, are discussed.

Markesinis & Deakin's Tort Law

2019 ◽  
Author(s):  
Simon Deakin ◽  
Zoe Adams
Keyword(s):  
Deep Understanding ◽  
Tort Law ◽  
Economic Interests ◽  
Economic Context ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
Economic Perspectives ◽  
The Relationship ◽  
8Th Edition

Markesinis and Deakin’s Tort Law, now in its 8th edition, provides a general overview of the law and discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy. In addition, the book provides a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context, thereby giving students a deep understanding of tort law. The book is composed of eight parts. Part I starts by setting the scene, Part II looks at the tort of negligence. Part III turns to special forms of negligence. This is followed by Part IV which examines interference with the person. Part V turns to intentional interferences with economic interests. The next part looks at stricter forms of liability. Part VII examines the protection of human dignity which includes looking at defamation and injurious falsehood, and human privacy. The last part looks at defences and remedies.

scholarly journals An exploration of place and its representations: an intertextual/ dialogical reading of the photographs of AB Ovenstone and the novel Gillespie by John MacDougall Hay.

2016 ◽  
Vol 41 ◽  
Author(s):  
Lindsay Fiona Blair
Keyword(s):  
Literary Text ◽  
Landscape Painting ◽  
The Novel ◽  
Work Of Art ◽  
Shipping Company ◽  
Private Collection ◽  
Semiotic Approach ◽  
The Subject ◽  
The Common ◽  
The Relationship

“An intertextual/ dialogical reading of place through photography and fiction” The article is an exploration of place and its representations based on the intertextual reading of a series of photographs (1880-82) of Tarbert, Loch Fyne by Andrew Begbie Ovenstone (1851-1935) and the dialogical reading of a novel, Gillespie (1914), by John MacDougall Hay (1881-1919) which is set in Tarbert. The proposed article is inspired by a sense that a semiotic approach to the subject will reveal far more than has been discovered within the tradition of hermeneutics and patrimony and that much will be gained by a study of the contrast between written and visual signifiers. The article raises questions about the (unexamined) coded readings of place especially in relation to the photograph, and the lack of an adequately theorized tradition for the novel. The literary text is well known - if not well understood - but the images are from a rare, unpublished, private collection of photographs from Scotland, India and the furthest reaches of Empire (Ovenstone was the Atlantic Freight Manager of Anchor Line Ltd, the Glasgow shipping company). The paper emphasizes the need for the use of codes to decipher the texts. When we “read” the photographs we need to be aware of the intertextual relationship between the photograph and the landscape painting tradition as well as the common practice of the created tableau – there is then overlaid upon the image the sense of a set of conventions, a system which operates much like a language. We are able to discover through the notion of the “long quotation from appearances” the potential for more complex “synchronic” readings. Likewise, in the case of Gillespie, the novel operates within a genre which determines a “reading”. When we are aware of a code, we become aware of the way that Hay manoeuvres adroitly to thwart the reader’s best efforts to settle upon a preferred reading – especially one shaped by an authoritative narrator - which thereby allows for the genuine experience of “heteroglossia” to emerge. The notion of truth in Gillespie is interrogated in the light of Heidegger’s essay “The Origins of a Work of Art” in order that the relationship between representation and reality be clarified.

Philosophy of Law: Normative Foundations

Philosophy ◽  
2012 ◽  
Author(s):  
John Oberdiek
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Philosophy Of Law ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Theories Of Punishment ◽  
The Common ◽  
The Relationship ◽  
Normative Foundations ◽  
Vast Territory

This article on the philosophy of law focuses on contemporary discussions of law’s normative foundations. This branch of philosophy of law, also called normative legal theory, overlaps with topics in political philosophy and ethics, as well as with analytical general jurisprudence, and it is a lively and rich area of philosophical research. As this description suggests, normative philosophy of law covers a vast territory. A case could easily be made to include several dozen more topics under this heading, or indeed to devote separate overarching entries to many of the topics that might be subsumed under normative philosophy of law. The philosophy of criminal law, for example, comprises far more than theories of punishment. This is all to say that what follows is but a primer. The common focus of the following topics is the relationship between individuals and the state. Examining that relationship has long been a principal concern of normative philosophy of law. More specifically, normative philosophy of law in the dominant Anglophone tradition has long been devoted to exploring the state’s role in alternately protecting and constraining individual liberty through law. This article charts aspects of that alternating role, focusing on authority, the duty to obey the law, the rule of law, rights, legal moralism, and punishment.

Utilizing Systems Theory Insights and Reflexive Law to Negotiate the “Collision between… Un-connecting Worlds” in Family Law

2021 ◽  
Vol 9 (2-3) ◽  
pp. 212-243
Author(s):  
Tristan Cummings
Keyword(s):  
Systems Theory ◽  
Social Relations ◽  
Final Section ◽  
Legal Theory ◽  
Family Law ◽  
Theoretical Perspective ◽  
Analytical Framework ◽  
General Application ◽  
The Relationship

Abstract This article defends an analytical framework based on systems theory, reflexive law, and Teubner’s regulatory trilemma. J v B exemplifies the numerous overlapping social relations, and forms a case study on the relationship between the State, community, and minority religious individuals, and on how this relationship can break down from the systems theoretical perspective. The article uses this case as a testing ground for a modified systems theoretical approach, treating this conflict between family law and religion as a regulatory problem. Although it centers on English family law, the article should be read as a piece of normative legal theory of general application. In the final section, it explores reflexive secularity and how this may apply in cases where law and religion interact, such as J v B.

Mind Control

2020 ◽  
pp. 164-186
Author(s):  
Marcela Herdova ◽  
Stephen Kearns
Keyword(s):  
Decision Making ◽  
Self Control ◽  
Ability To Act ◽  
Mind Control ◽  
The Face ◽  
The Subject ◽  
The Common ◽  
The Relationship ◽  
Common Understanding

This chapter explores the relationship between self-control and decision-making. In particular, it examines various problems with the idea that agents can (and do) exercise self-control over their decisions. Two facts about decisions give rise to these problems. First, decisions do not result from intentions to make those very decisions. Second, decisions are often made when agents are uncertain what to do, and thus when agents lack best judgments. On the common understanding of self-control as an ability to act in line with an intention or best judgment (in the face of counter-motivation), decisions are not, and perhaps cannot, be the subject of self-control. In light of this, the authors propose that this common conception of self-control needs revision. As well as commitment-based self-control, they argue that there is also non-commitment-based self-control—the type of self-control over an action that need not involve any prior evaluative or executive commitment.

scholarly journals Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Tina Kotzé ◽  
Zsa-Zsa Boggenpoel
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Narrow Sense ◽  
Underlying Principle ◽  
Living Together ◽  
The Common ◽  
Nuisance Law ◽  
The Republic ◽  
The Relationship

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

scholarly journals Importance of subject of crime for qualification an act as assault

2019 ◽  
Vol 2019 (2) ◽  
pp. 153-160
Author(s):  
Дмитрий Кокин ◽  
Dmitriy Kokin
Keyword(s):  
Criminal Law ◽  
Legal Interpretation ◽  
The Subject ◽  
Relationship Of ◽  
The Relationship

In the article, author consider the essence of such crime as assault. As one of the important and at the same time difficult to understand signs of this corpus delicti, the subject of crime. Author analyze the corpus of several crimes against property and establish differences in the importance of the subject for the qualification of assault, in contrast to other crimes against property. Determining the value of the subject of crime, author analyze the relationship of various characteristics of corpus delicti of assault and other crimes against property. Particular attention is paid to the relationship of optional features of the crime object with signs of the objective and subjective sides. In this regard, author consider the provisions of criminal law, acts of its legal interpretation, as well as examples of judicial and investigative practices.

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