scholarly journals PRINCIPLE, PRACTICE, AND PRECEDENT: VINDICATING JUSTICE, ACCORDING TO LAW

2018 ◽  
Vol 77 (2) ◽  
pp. 269-297 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Moral Judgment ◽  
Legal Theory ◽  
Common Law ◽  
Legal Practice ◽  
Moral Obligations ◽  
Moral Ideals ◽  
Legal Obligations ◽  
The Law

AbstractLegal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moraleffectsof our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

Women and Gender in Canon Law

2013 ◽  
Author(s):  
Sara McDougall
Keyword(s):  
Canon Law ◽  
Legal Theory ◽  
Legal Practice ◽  
Women And Gender ◽  
Men And Women ◽  
Three Stages ◽  
Marriage Formation ◽  
The Law ◽  
And Gender ◽  
The Church

Canon law, the law of the church, defined men and women as distinct and different. Nevertheless, particularly in marriage, canon law also endorsed several important equalities for spouses, irrespective of gender. This article seeks out the balance between gender equalities and inequalities in marriage as found in legal theory and in legal practice, in canon law and in canon law courts. The law itself called for a contradictory positioning of men and women as husbands and wives in a relationship that required both a hierarchical structure and at the same time equality. Ecclesiastical judges practiced a complex implementation of these rules. The article will examine the place of gender in canon law and legal practice concerning marriage in three stages: marriage formation, married life, and dissolution.

The Unity of Property Law

1991 ◽  
Vol 4 (01) ◽  
pp. 3-66
Author(s):  
Alan Brudner
Keyword(s):  
Common Law ◽  
Property Law ◽  
Legal Practice ◽  
Object A ◽  
Normal Product ◽  
The Common ◽  
The Law ◽  
Moral Respect

This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.

scholarly journals Calling a Notary by Police Investigator Regarding the Relaas Deed Made by a Notary (Case Study at Unit I Pidum Sat Reskrim West Lombok Regional Police)

2019 ◽  
Vol 7 (05) ◽  
Author(s):  
Lalu Henry Sarwoto ◽  
Lalu Parman ◽  
Aris Munandar
Keyword(s):  
Legal Theory ◽  
Supervisory Board ◽  
Personal Identification ◽  
Public Prosecutor ◽  
Judicial Process ◽  
Legal Obligations ◽  
The Law ◽  
To Receive ◽  
Proper Consideration

In Article 66 of Law No. 2 of 2014 in conjunction with Law No. 30 of 2004 concerning Notary Position (UUJN), namely: a. If needed by law enforcers in the judicial process, namely the investigator, public prosecutor or judge can submit a request for approval in order to summon a notary. The letter was submitted to the Honorary Board of Notaries; b. Within a maximum of 30 working days from the receipt of the letter of request, the Honorary Board of Notaries must provide the answer; c. If within the period of time determined by the Honorary Board of Notaries does not provide the answer, then the notary Honorary Council's silence is deemed to have received the request for approval. So that law enforcement can make calls to the notary concerned; d. After obtaining approval from the Notary Honorary Assembly, law enforcers are authorized to: 1. Request and take a photocopy of the Minuta deed and / or letters that have been attached to the Minuta deed in the notary deposit (notary protocol); 2. Calling a notary to attend the criminal examination process relating to the notary deed or protocol that is in storage. This type of thesis is normative juridical research that is descriptive analytical, meaning that a data analysis based on general legal theory is applied to explain another set of legal materials. Conclusion: 1. Investigators are authorized to examine Notaries, where Investigators are authorized to receive reports or complaints about criminal acts, seek information and evidence, order to stop suspected persons or ask and examine personal identification and conduct other actions according to law, they can also acting on the orders of investigators to make arrests, forbid leaving search sites and confiscating them. 2. The procedure of investigation is carried out on a Notary after reporting on the Deed made by a Notary, and in the report stated that the Notary has committed a Criminal Act as stipulated in Article 66 of the UUJN. However, the summons of a Notary as a witness, suspect or defendant after the investigator submits a written request to the Regional Supervisory Board and the request is sent to the Notary by making an excuse rather than calling the Notary as a witness, suspect or defendant. After the issuance of the new Notary Position Act, based on Article 66 paragraph I of Act Number 2 of 2014 concerning the current Notary Position, the summons made by the investigator is considered valid if the investigator mentions the reason for the summons clearly, and the caller is Acts that are accountable according to the law are not in conflict with the law, in line with legal obligations, reasonable, reasonable within the investigator's office, based on proper consideration and respect for human rights.

Forensic Idols

2019 ◽  
pp. 73-98
Author(s):  
Anthony Ossa-Richardson
Keyword(s):  
Common Law ◽  
Legal Practice ◽  
History Of ◽  
The Law ◽  
Eternal Salvation

This chapter examines the role of ambiguity in a hermeneutic setting that sees it only as doubt and never as plenty, namely, the English common law, where discussions about the nature of ambiguity serve as a proxy for a deeper controversy about what it means to interpret a text—a will, a contract, or a statute. Of the three hermeneutic disciplines—literature, law, and theology—it seems best to begin with the law for three reasons. First, its setting is closely bound to the rhetorical discourses discussed in the previous chapter. Second, legal hermeneutics stands somewhat apart from scripture and literary exegesis in that it never countenances the legitimacy of deliberate ambiguity. Third, of the three subjects, law is the most essential to society. If it was important to determine the sense of a line in Horace or St. John, it was far more so in a contract, for at stake there was not merely a grasp of the classics or the soul's eternal salvation, but money. Indeed, the machine of legal practice, of arguing and deciding cases, has always held to a rhythm of finding and resolving ambiguities. Rather than trying to cover all bases in the history of legal ambiguity, the chapter approaches the topic through its connection to the more fundamental hermeneutic problem of intention.

Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law

2019 ◽  
Vol 32 (1) ◽  
pp. 5-43 ◽  
Author(s):  
Thomas Bustamante
Keyword(s):  
Legal Practice ◽  
Moral Obligations ◽  
Metaphysical Theory ◽  
Impact Theory ◽  
Law And Morality ◽  
The Law ◽  
Theory Of Law ◽  
The One ◽  
Moral Facts

Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.

scholarly journals A Crítica de Dworkin ao Convencionalismo e sua Relevância: Um Esquema de Crítica Conceitual / Dworkin’s Criticism of Conventionalism and Its Relevance: A Conceptual Criticism Scheme

2016 ◽  
Author(s):  
Ronaldo Porto Macedo Jr
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Accurate Description ◽  
Conceptual Scheme ◽  
Legal Practice ◽  
Ronald Dworkin ◽  
Logical Grammar ◽  
The Law ◽  
Correct Understanding

Resumo: O trabalho apresenta um esquema conceitual da crítica formulada por Dworkin ao convencionalismo jurídico e seus impactos para a correta descrição do conceito de direito e da compreensão da natureza dos nossos desacordos jurídicos. Depois de  definir os significados de convenção, convencionalismo e do convencionalismo jurídico é apresentada a sua relevância para a determinação de uma concepção positivista de direito apoiada na tese de que este de funda exclusivamente em fontes diretamente sociais. Em seguida, são apresentados casos paradigmáticos de desacordos teóricos que não são adequadamente explicados por uma teoria jurídica comprometida com o convencionalismo jurídico. Com base neles é apresentado um esquema conceitual geral e provisório para a compreensão da critica que Dworkin formula ao convencionalismo jurídico, salientando-se como ela se fundamenta numa análise da gramática lógica pressuposta em desacordos teóricos comuns em nossa prática jurídica. Por fim, o texto indica que o convencionalismo jurídico não foi capaz de responder ao desafio dworkiniano na medida em que não considerou corretamente o tipo de desacordo teórico que estava em questão em casos centrais das práticas jurídicas.Palavras-chave: Positivismo jurídico; Convencionalismo jurídico; Interpretativismo.Abstract: The essay presents a conceptual scheme of the criticism made by Ronald Dworkin to legal conventionalism and its relevance for an accurate description of the law and the correct understanding of the nature of legal disagreement. After defining the concepts of convention, conventionalism and legal conventionalism it shows its connection to a positivist conception of law based on the exclusive social grounds of law. It offers shows how some paradigmatic cases of theoretical disagreements are not adequately explained by a legal theory committed with legal conventionalism. Based on these cases the text offers a general and preliminary conceptual scheme to understand Dworkin’s criticism of legal conventionalism. Dworkin’s approach is grounded on the analysis of the logical grammar presupposed by theoretical disagreement common in ordinary legal practice. Finally the essay points to the fact that legal conventionalism failed to cope with the Dworkinian challenge since it could not rightly take in consideration the kind of theoretical disagreements that are at stake in pivotal cases of legal practice.Keywords: Legal positivism; Legal conventionalism; Interpretativism.

5.13 How to handle Community law reports It is now important to sum this section up by looking at the issues surrounding the reading of Community law reports and reflecting on the development of reading skills. All legal systems have some appreciation and acknowledgment of precedent. The Community legal order is an artificially created legal system that draws on the legal systems of the Member States for the establishment of approaches to interpretation and law making in relevant areas. The majority of Member States operate from a Civil Code legal system unlike the UK’s preference for a common law system. Because of the familiarity of most Member States with civil law systems and the fact that all of the founding members were nation States with civil law systems, the European Community’s legal system is deeply embedded in the civil system. In the English law’s common law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory This states that when a judge in court is deciding a case he declares in his decision what the law is. The case can then become an important precedent, as it states the law and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent. In civil law systems codes are used to organise areas of law. All civil systems are based in different ways on Roman law where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. The ECJ, not surprisingly, when setting up legal principles that apply across all cases, drew upon the legal experience of all Nation States, but the minority approach of the English legal system is not the approach in the Community legal order. As you will remember from Chapter 3, in the English common law system decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English legal system, previous court cases and law cases are presented to the court as precedents. But this is not the case in the ECJ where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. It should have been apparent from the previous chapter and the discussion in that chapter on the doctrine of precedent that English law, despite its theoretically rigid binding nature, is extremely flexible in the mouths of judges. It may seem odd that there is a lack of precedent in the ECJ. But the ECJ has a determination to carefully develop and keep legal principles which do give a great deal of consistency and coherence to Community law. Commentators have noted that it has now become normal and accepted for courts to refer to earlier cases and use these earlier cases as the rationale for decisions, which begins to feel like precedent. However, even given these suggestions of openness to the concept of precedent there is no suggestion that the ECJ would ever reach a decision that it did not want to purely because of other cases deciding matters differently. The reverse could, however, occur in the English legal system.

2012 ◽  
pp. 170-170
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Common Law ◽  
Civil Law ◽  
Member States ◽  
Law System ◽  
Community Law ◽  
Nation States ◽  
The Law ◽  
Law Reports

The Enchantment of Knowledge and its Apotheosis: Gustave Flaubert’s Bouvard and Pécuchet

2019 ◽  
pp. 11-27
Author(s):  
Jeanne Gaakeer
Keyword(s):  
Nineteenth Century ◽  
Legal Theory ◽  
Legal Practice ◽  
The Law

Chapter 1 offers a metaphorical reading of Gustave Flaubert’s Bouvard and Pécuchet to illustrate how the process of differentiation of knowledge culminated in the positivist thought of the nineteenth century. It suggests that legal practitioners should develop narrative intelligence in order to understand in which ways the law follows out of the narrative of the facts, ex fabula ius oritur, and what it is that they do when in practice they construct legal narratives.The chapter offers a blueprint for the whole book in that it lays bare the very real epistemological questions that contemporary legal theory (doctrinal and interdisciplinary) and legal practice have to confront: the construction of, and/or the contempt for facts, and linguistic perversions of the language of concepts.

Ibn Khaldūn Between Legal Theory and Legal Practice

2020 ◽  
Vol 32 (1) ◽  
pp. 27-61
Author(s):  
Mourad Laabdi
Keyword(s):  
Critical Analysis ◽  
Islamic Law ◽  
Legal Theory ◽  
Legal Practice ◽  
Close Attention ◽  
Systematic Analysis ◽  
Ibn Khaldun ◽  
History Of ◽  
The Law ◽  
And Performance

Abstract Modern studies of Ibn Khaldūn (d. 808/1406) have covered several aspects of his thought including historiography, pedagogy, philosophy, economy, urbanism and, most recently, mysticism. However, there remains conspicuously little on the place of the law within his intellectual enterprise despite the fact that the law had played a central role in his career as scholar, teacher, and statesman. This paper reconstructs two expressions of his relationship with the law: his conceptualization of it as a scholar, and his practice of it as a justice administrator. It first examines Ibn Khaldūn’s legal training, writings and performance, with close attention to his role as a Mālikī chief judge in Mamlūk Egypt. Then, it probes his perspective on the development of Islamic law and its institutions through a systematic analysis of his account of fiqh and uṣūl al-fiqh in the Muqaddima. The paper concludes that Ibn Khaldūn’s narrative fulfills two main tendencies: to contribute a critical analysis of the history of Islamic law, and to represent this history in a novel fashion through his theory of society and culture (ʿilm al-ʿumrān).

Afterword

2019 ◽  
pp. 456-498
Author(s):  
Gerald J. Postema
Keyword(s):  
Reflective Thinking ◽  
Legal Theory ◽  
Common Law ◽  
Rational Agents ◽  
Important Challenge ◽  
The Common ◽  
Judicial Reasoning ◽  
The Law

Bentham and the Common Law Tradition (BCLT) is a work of philosophical jurisprudence. Philosophical jurisprudence recognizes that, like law itself, reflective thinking about law is inescapably historical. This chapter considers the challenges to the interpretation of Bentham's legal theory advanced in BCLT. The most important challenge to BCLT concerns the author's interpretation of Bentham's view of judicial reasoning. The author argued that consistently throughout his life Bentham understood the principle of utility to be the sole ultimate decision principle, the principle structuring and guiding deliberations of all rational agents. Judges, rational practical agents like all others, reason in this distinctively utilitarian way as they work within the framework of the law. This is true whether the judge operates within shadow of Bentham's pannomion or outside it.

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