Magic and Property: The Legal Context of Apuleius' Apologia

Antichthon ◽  
2011 ◽  
Vol 45 ◽  
pp. 149-166 ◽  
Author(s):  
Tristan Taylor
Keyword(s):  
Legal Rules ◽  
Legal Situation ◽  
Legal Context ◽  
The Law ◽  
Legal Sense

AbstractThis paper examines Apuleius' Apologia from the perspective of its legal context. The paper asks three questions: first, what was the legal situation in relation to the property issues central to the motivations of Apuleius' accusers? Second, what would the legal effects of a conviction have been on these property concerns? And, finally, what light do our answers to these questions shed on the Apologia itself? The applicable legal rules suggest both that some of the concerns of the prosecutors were ill-founded and that the prosecution would have achieved little in a legal sense in terms advancing their alleged ends. These observations suggest several potential conclusions: first, that Apuleius' accusers sincerely believed their accusation of magic and thought that it was only the magical skill of Apuleius that threatened their aspirations to Pudentilla's estate. Conversely, it may be that the accusers were simply ignorant about the law, vindictive towards Apuleius, or both. Third, that Apuleius has misrepresented his accusers' motivations. Finally, these conclusions on matters of law could even be taken to suggest that the speech does not represent a genuine case, but rather is a work of fiction concocted by Apuleius for literary purposes.

The Law of International Watercourses

2019 ◽  
Author(s):  
McCaffrey Stephen C
Keyword(s):  
Water Resources ◽  
International Law ◽  
Fresh Water ◽  
Drainage Basins ◽  
International Rivers ◽  
Legal Rules ◽  
Legal Context ◽  
Precious Resource ◽  
The Law ◽  
Procedural Rights

This book is an authoritative guide to the rules of international law governing the navigational and non-navigational uses of international rivers, lakes, and groundwater. The continued growth of the world’s population places increasing demands on Earth’s finite supplies of fresh water. Because two or more States share many of the world’s most important drainage basins, competition for increasingly scarce fresh water resources will only increase. Agreements between the States sharing international watercourses are negotiated, and disputes over shared water are resolved, against the backdrop of the rules of international law governing the use of this precious resource. The basic legal rules governing the use of shared freshwater for purposes other than navigation are reflected in the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses. This book devotes a chapter to the 1997 Convention but also examines the factual and legal context in which the Convention should be understood, considers the more important rules of the Convention in some depth, and discusses specific issues that could not be addressed in a framework instrument of that kind. It reviews the major cases and controversies concerning international watercourses as a background against which to consider the basic substantive and procedural rights and obligations of States in the field. This new edition covers the implications of the 1997 Convention coming into force in August 2014, and the compatibility of the 1997 and 1992 Conventions.

Having one's cake and eating it: the paradox of contextualisation in socio-legal research

2011 ◽  
Vol 7 (4) ◽  
pp. 487-503 ◽  
Author(s):  
Reza Banakar
Keyword(s):  
Legal System ◽  
Legal Practice ◽  
Policy Makers ◽  
Legal Decisions ◽  
Legal Rules ◽  
Legal Context ◽  
Legal Texts ◽  
The Law ◽  
Self Reference ◽  
Closed Image

Traditional doctrinal scholarship provides an important service to practising lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their interrelationship (Chynoweth, 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities, and feed back in to legal practice once they are used in deciding cases. The method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell, 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney, 1998, p. 76; Vick, 2004), for ‘not being self-conscious about its assumptions’ (Twining, 1999, p. 44) and for cultivating what Geoffrey Samuel (2009) calls the ‘authority paradigm’. Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called the ‘practical insider attitudes’ (Twining, 2000, p. 129; for a discussion, see Banakar, 2003, p. 8). Externally, i.e. from the standpoint of policy-makers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm's normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel, 2009, p. 432). It fosters an understanding of the law as a system, which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel, 2009; see also Banakar, 2009b). These scholars place the law in the broader sociocultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.

scholarly journals If “Everyone Does It,” Then You Can Too

2018 ◽  
Vol 9 (1) ◽  
pp. 27-31
Author(s):  
Charlie Melman
Keyword(s):  
Moral Sense ◽  
Legal Realism ◽  
Legal Context ◽  
The Law ◽  
Definition Of ◽  
Legal Sense ◽  
Orthodox View

I argue that the “But Everyone Does That” (BEDT) defense can have significant exculpatory force in a legal sense, but not a moral sense. I consider whether legal realism is a better theory of the law than the more orthodox view of respecting the law as it is written. I next examine what the purpose of the law is, especially attending to how widespread disobedience is treated. Finally, I attempt to fit BEDT within Paul Robinson’s framework for categorizing defenses. I conclude that, first, BEDT can have significant exculpatory force; second, a BEDT plea does not comport with either Robinson’s definition of an excuse or other commonly held conceptions and so needs its own classification; and finally, BEDT does not exonerate the offender in a moral sense—only in a legal context.

scholarly journals Virtue and Advice

2013 ◽  
Vol 1 (1) ◽  
pp. 1-53
Author(s):  
Michael S. McGinniss
Keyword(s):  
Professional Judgment ◽  
Professional Conduct ◽  
Professional Identities ◽  
Moral Ideal ◽  
Greek Philosopher ◽  
Legal Situation ◽  
Legal Context ◽  
The Law ◽  
Relationship Of ◽  
The Relationship

This Article examines the ethical and moral responsibilities of lawyers in their role as advisors to clients, with continual reference to the Greek philosopher Socrates.* Although Socrates was not a lawyer, he was an “advisor,” who lived a life committed to engaging in dialogue about virtue and its meaning and, at times, about the law and one’s duties in relation to the law. According to Rule 2.1 of the ABA Model Rules of Professional Conduct, when representing clients and acting as advisors, lawyers are expected to “exercise independent professional judgment” and “render candid advice,” which includes authority to counsel clients on moral considerations relevant to their legal situation. Socrates was a paradigm of “independence” and, although his speech was often bristling with irony, he was also persistently “candid” with his dialogue partners as they pursued the truth about moral questions. His life and teachings, and his courage in adhering to the principles that defined him, offer valuable insights for lawyers as they form their professional identities and serve as advisors to their clients. Part I of this Article will offer an overview and perspective on lawyers as independent advisors, first by closely examining Rule 2.1 and its meaning. It will then further explore moral independence in a legal context by reflecting on Socrates, with particular attention to his trial and its aftermath, but also considering Socrates as portrayed in the philosophy of Søren Kierkegaard. Part II will review several frameworks legal ethicists have developed to describe the relationship of advising lawyers and their clients, and propose the moral ideal of the “trustworthy neighbor” for lawyers serving clients in the advising role. Finally, Part III will consider some lessons derived from the teachings of Socrates for lawyer-advisors who are engaged in moral dialogue with their clients.

scholarly journals A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Rossella Esther Cerchia
Keyword(s):  
Dense Network ◽  
Legal Rules ◽  
The Law ◽  
Laws And Regulations

Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Legal Mentality and Its Influence in Shaping Legal Rules: the Relationship between Principal and Agent

Global Jurist ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Rossella Esther Cerchia
Keyword(s):  
Historical Analysis ◽  
Small Community ◽  
Legal Rules ◽  
Agency Relationship ◽  
Legal Studies ◽  
Legal Context ◽  
The Family ◽  
Legal Forms ◽  
Legal Contexts ◽  
The Relationship

Abstract It is assumed that comparative legal studies, through its deep and historical analysis of law and its dissociation in legal formants, have contributed to understanding the importance of the different factors that shape legal rules. In this article, emphasis is given to a factor that is sometimes neglected in legal narrations: legal mentality or, more simply, the inherent logical way of thinking and its influence in shaping legal rules. The area of investigation is the legal relationship between principal and agent. It is a narration that selects a specific “fil rouge” to link different “pieces” throughout European history to compose a mosaic of different factors that may have contributed to developing a certain legal mentality in this area of law. The legal mentality is nothing more than the product of the extra-legal contexts in which principal and agent operate. In reference to the extra-legal context, it means the importance, above all, of the situations of proximity between the two parties: proximity that could be “spacial” (i.e., they are part of the same small community), or “relational” governed by extra-legal forms of belonging to the same group, for instance families (broader or narrower ones) or clans. This narration starts with a glance at the ancient agreement of mandatum and its roots in the Roman idea of “friendship” and personal bond. Then it continues by touching on a source of the medieval companies: the family bond, one of the stronger and more trustworthy relationships at the time. It will be shown that some aspects of that relationship are not dissimilar from the ones later formed by the case law of the English Chancery Court in the field of the law of agency. This could be seen as a result of the legacy of the stratification of a certain legal mentality shaped by a context that was created by extralegal relationships. Nowadays the modern fading of the personal bond between principal and agent has highlighted an important evolution: there was proximity then depersonalization: this is reflected in the evolution of legal rules, for instance, in French, Italian and English national law. Finally, the case of the “real” or “absolute” irrevocability of the authority shows that the agency relationship, constructed in a breeding ground characterized by trust and utilized to protect the principal's interest (or even the principal's interest), could become - through related or linked contracts - an instrument of more complex agreements. In these cases, the interest of the agent or third parties (such as creditors, contractual counterparts or “beneficiaries” in the broad sense) could lead those transactions far from the original idea of mandat or mandato or agency. In those situations, the “causa” of the agency  (to use a concept dear to civil law tradition) changes and its roots in personal bond and the principal's interest loses its strength as it is mirrored, once again, in the legal rules.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

scholarly journals O rozgraniczaniu statutów i wsysaniu regulacji prawnej (na przykładzie prawa stosowanego do oceny różnych aspektów powołania i funkcjonowania wykonawcy testamentu i zarządcy sukcesyjnego przedsiębiorstwem)

2020 ◽  
pp. 159-177
Author(s):  
Maksymilian Pazdan
Keyword(s):  
International Law ◽  
Legal System ◽  
Private International Law ◽  
Legal Basis ◽  
Legal Rules ◽  
Eu Regulation ◽  
The Will ◽  
The Law ◽  
The Eu

The position of the executor of the will is governed by the law applicable to succession (Article 23(2)(f) of the EU Regulation 650/2012), while the position of the succession administrator of the estate of a business of a physical person located in Poland is subject to the Law of 5 July 2018 on the succession administration of the business of a physical person (the legal basis for such solution is in Article 30 of the EU Regulation 650/2012). However, if the court needs to determine the law applicable to certain aspects of appointing or functioning of these institutions, which have a nature of partial or preliminary questions, these laws will apply, as determined in line with the methods elaborated to deal with partial and preliminary questions in private international law. The rules devoted to the executors of wills are usually not self-standing. In such situations, the legislators most often call for supportive application of the rules designed for other matters existing in the same legal system (here — of the legis successionis). This is referred to as the absorption of the legal rules.

scholarly journals Talion w świetle "Noctes Atticae" Aulusa Gelliusa

1995 ◽  
Vol 38 (3-4) ◽  
pp. 231-240
Author(s):  
Jan Zabłocki
Keyword(s):  
Aulus Gellius ◽  
Legal Context ◽  
The Law

Aulus Gellius presented a discussion between a philosopher and a layer in his Noctes Atticae. According to Sextus Caecilius who was the lawyer the talon had been antiquated in the days of the Law of the Twelve Tables and it was substituted by pecuniary penalties. However, the praetor’s activity affected the abandonment of fines with amounts fixed in the Twelve Tables in favour of a penalty for iniuria which was estimated by a judge. It was similar the case of membri ruptio, when an offender had decided to avoid the talon. Yet Favorinus who was the philosopher emphasized that choice o f talon belonged to a sufferer. Nevertheless, he noted its cruelty and problems with the just execution of the talon. His attitude did not surprise: he took no account of social and legal circumstances not only of the time of the Twelve Tables, but of his own days as well. Defending the humanitarianism of the Twelve Tables, the layer analized their clauses in the broad cultural and legal context. He did not allege that the talon had been humanitarian, but he tended to clarify that the penalty had to be accepted by the offender and it was executed only on himself.

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