Law and the Protection of Institutions

1970 ◽  
Vol 4 ◽  
pp. 204-219
Author(s):  
Basil Mitchell
Keyword(s):  
Private Property ◽  
Central Core ◽  
Common Morality ◽  
Moral Rule ◽  
Ordinary Sense ◽  
Empirical Question ◽  
General Acceptance ◽  
Extended Sense ◽  
The Common ◽  
The Law

It is a pity that the question about the proper purpose of law has so often been formulated in terms of ‘the enforcement of morals’. Not only is that issue highly charged with emotion, but the sense of the expression is unclear and, taken in any ordinary sense, its importance is marginal. What Lord Devlin seems chiefly to be arguing, when he supports the enforcement of morals, is that there are in any society certain central institutions which receive and deserve protection by law and that without such protection the society in question would disintegrate. His examples in our own society are monogamy and private property. It is true that these institutions are closely bound up with parts of our morality in two different ways: (a) certain moral prohibitions are defined in terms of them, e.g. adultery and theft; (b) a host of obligations is associated with them upon whose general acceptance and discharge their continuance depends. But it is only in an extended sense that one could describe the institutions themselves as parts of the common morality. It is possible, therefore, to hold that the law may properly be used to protect such institutions without necessarily taking the further step of maintaining that their protection requires and justifies legal prohibition of acts which offend against the associated morality. Professor Hart states this position clearly (a position which he does not himself accept): ‘What is essential and to be preserved is the essential core. On this footing it would be an open and empirical question whether any particular moral rule or veto, e.g. on homosexuality, adultery or fornication, is so organically connected with the central core that its maintenance and preservation is required as a vital outwork or bastion.’

Law and the Protection of Institutions

1970 ◽  
Vol 4 ◽  
pp. 204-219
Author(s):  
Basil Mitchell
Keyword(s):  
Private Property ◽  
Central Core ◽  
Common Morality ◽  
Moral Rule ◽  
Ordinary Sense ◽  
Empirical Question ◽  
General Acceptance ◽  
Extended Sense ◽  
The Common ◽  
The Law

It is a pity that the question about the proper purpose of law has so often been formulated in terms of ‘the enforcement of morals’. Not only is that issue highly charged with emotion, but the sense of the expression is unclear and, taken in any ordinary sense, its importance is marginal. What Lord Devlin seems chiefly to be arguing, when he supports the enforcement of morals, is that there are in any society certain central institutions which receive and deserve protection by law and that without such protection the society in question would disintegrate. His examples in our own society are monogamy and private property. It is true that these institutions are closely bound up with parts of our morality in two different ways: (a) certain moral prohibitions are defined in terms of them, e.g. adultery and theft; (b) a host of obligations is associated with them upon whose general acceptance and discharge their continuance depends. But it is only in an extended sense that one could describe the institutions themselves as parts of the common morality. It is possible, therefore, to hold that the law may properly be used to protect such institutions without necessarily taking the further step of maintaining that their protection requires and justifies legal prohibition of acts which offend against the associated morality. Professor Hart states this position clearly (a position which he does not himself accept): ‘What is essential and to be preserved is the essential core. On this footing it would be an open and empirical question whether any particular moral rule or veto, e.g. on homosexuality, adultery or fornication, is so organically connected with the central core that its maintenance and preservation is required as a vital outwork or bastion.’

On the Common Saying that it is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro and Con

1990 ◽  
Vol 7 (2) ◽  
pp. 226-248 ◽  
Author(s):  
Jeffrey Reiman ◽  
Ernest Van Den Haag
Keyword(s):  
Criminal Justice ◽  
John Stuart Mill ◽  
General Acceptance ◽  
The Common ◽  
English Law ◽  
The Law

In Zadig, published in 1748, Voltaire wrote of “the great principle that it is better to run the risk of sparing the guilty than to condemn the innocent.” At about the same time, Blackstone noted approvingly that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” In 1824, Thomas Fielding cited the principle as an Italian proverb and a maxim of English law. John Stuart Mill endorsed it in an address to Parliament in 1868. General acceptance of this maxim continues into our own period, yet it is difficult (and for us so far, impossible) to find systematic attempts to defend the maxim. It is treated as a truism in no need of defense. But the principle within it is not at all obvious; and since it undergirds many of our criminal justice policies, we should be sure that it is justifiable. First, however, we must clarify what the principle means.

Marx and the “law of value”: Critical appraisal on the occasion of his 200th birth anniversary

2018 ◽  
pp. 27-49 ◽  
Author(s):  
H. D. Kurz
Keyword(s):  
Karl Marx ◽  
Critical Appraisal ◽  
Critical Discussion ◽  
Use Value ◽  
Transformation Problem ◽  
The Common ◽  
The Law

The paper celebrates Karl Marx’ 200th birthday in terms of a critical discussion of the “law of value” and the idea that “abstract labour”, and not any use value, is the common third of any two commodities that exchange for one another in a given proportion. It is argued that this view is difficult to sustain. It is also the source of the wretched and unnecessary “transformation problem”. Ironically, as Piero Sraffa has shown, prices of production and the general rate of profits are fully determined in terms of the same set of data from which Marx started his analysis.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Libertarianisms

2018 ◽  
Author(s):  
Daniel Halliday
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Private Property Rights ◽  
Classical Liberal ◽  
Inherited Wealth ◽  
Left And Right ◽  
The Common

This chapter considers various arguments both for and against taxing inherited wealth, each of these being associated with some or other type of libertarian outlook. Libertarianism in the Lockean guises (‘left’ and ‘right’ varieties) is distinguished from its classical liberal alternative, which downplays the Lockean emphasis on private property rights in favour of a more defeasible case for small government and low taxation. These different perspectives generate a variety of quite different arguments about inheritance, some more persuasive than others. Some attention is paid to the common claim that inheritance taxes ‘punish’ virtue and generosity. It is then argued that a Rignano scheme may be particularly attractive in light of certain left-libertarian commitments and as a way of accommodating a classical liberal concern about perpetual savings.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals The influence of common property rights on forest management policy: a case study in Sardinia region, Italy

2012 ◽  
Vol 56 (1) ◽  
pp. 16-26 ◽  
Author(s):  
Alessandro Paletto ◽  
Isabella De Meo ◽  
Fabrizio Ferretti
Keyword(s):  
Forest Management ◽  
Property Rights ◽  
Common Property ◽  
Private Property ◽  
Local Development ◽  
Management Policy ◽  
Private Forests ◽  
The Public ◽  
The Common

Abstract The property rights and the type of ownership (private owners, public domain and commons) are two fundamental concepts in relationship to the local development and to the social and environmental sustainability. Common forests were established in Europe since the Middle Ages, but over the centuries the importance of commons changed in parallel with economic and social changes. In recent decades, the scientific debate focused on the forest management efficiency and sustainability of this type of ownership in comparison to the public and private property. In Italy common forests have a long tradition with substantial differences in the result of historical evolution in various regions. In Sardinia region the private forests are 377.297 ha, the public forests are 201.324 ha, while around 120.000 ha are commons. The respect of the common rights changed in the different historical periods. Today, the common lands are managed directly by municipalities or indirectly through third parties, in both cases the involvement of members of community is very low. The main objective of the paper is to analyse forest management differences in public institutions with and without common property rights. To achieve the objective of the research the forest management preferences of community members and managers were evaluated and compared. The analysis was realized through the use of the principal-agent model and it has been tested in a case study in Sardinia region (Arci-Grighine district). The analysis of the results showed that the categories of actors considered (members of community, municipalities and managers) have a marked productive profile, but municipalities manage forests perceiving a moderate multifunctionality. Moreover, the representatives of the municipalities pay more attention to the interests of the collectivity in comparison to the external managers. They also attribute high importance to environmental and social forest functions.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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