Multiculturalism meets privatisation: the case of faith-based arbitration

2013 ◽  
Vol 9 (3) ◽  
pp. 343-365 ◽  
Author(s):  
Audrey Macklin
Keyword(s):  
Family Law ◽  
Public Law ◽  
Close Reading ◽  
Supreme Court Of Canada ◽  
Policy Proposal ◽  
Private Ordering ◽  
Faith Based ◽  
Religious Law ◽  
Per Se ◽  
Judicial Recognition

AbstractThe debate surrounding judicial recognition of faith-based arbitration is typically framed as a multicultural contest between the liberal, gender-equal neutrality of public law and the patriarchal particularity of religious law. Within this framework, the state is understood as advancing the goal of protecting the ‘encultured subject’ from the disempowering effects of her religion. The author departs from this trend by reading the Canadian controversy over Islamic family law arbitration against a legal landscape that already authorises and encourages parties to settle matters of property division and support through private ordering. The author argues that faith-based arbitration and its normative driver, multiculturalism, were already nested within the domain of privatisation and neoliberal ideals of choice, liberty and autonomy. Facilitation of private ordering in family law paved the way for faith-based arbitration. Through a close reading of Supreme Court of Canada family law jurisprudence about the enforcement of marital contracts, the author argues that concerns more properly directed at privatisation per se have been aimed at the putative content of religious norms. The author offers a policy proposal that addresses these concerns as they arise in the context of faith-based arbitration.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

Gedanken zu Genesis 46,8–27

2019 ◽  
Vol 63 (1) ◽  
pp. 93-104
Author(s):  
Wilfried Warning
Keyword(s):  
Close Reading ◽  
Per Se ◽  
Distinct Distribution

Abstract In general, commentators consider Gen 46:8–27 as a secondary addition. Close reading brings to light the structuring role of verses 18 and 25 („these were the sons of Zilpah / Bilhah … and these she bore to Jacob, sixteen souls / seven souls”). In a ten-part outline based on the personal name (PN) „Jacob” v. 18 takes the fourth and v.25 the fourth from last positions. In Genesis 37–50 the noun נפש „soul” occurs thirteen times – now v. 18 takes the sixth and v. 25 the sixth-from-last positions. The thirteen-part table based on the PN „Ruben” stands out for two reasons: Firstly, in Genesis the term „Ruben the first born of Jacob” shows up only twice, namely in the first (34,23) and last (46,8) texts. Secondly, as regards content 37,22 and 42,22 are correlated. In the 13-part outline they take the sixth and sixth-from-last positions respectively. The distinct distribution of these terms indicates that the passage per se is well structured and, what is more, at the same time it has been skillfully integrated in Gen 37–50 and in the Jacob-Joseph cycle.

A Court of Specialists

2020 ◽  
Author(s):  
Chris Hanretty
Keyword(s):  
Family Law ◽  
Public Law ◽  
Tax Law ◽  
Decision Making Process ◽  
Main Argument ◽  
Political Differences ◽  
Uk Supreme Court ◽  
The Uk ◽  
Initial Selection ◽  
Selection Of

This book explains how judges on the UK Supreme Court behave. It looks at different stages in the court's decision-making process—from the initial selection of cases, to the choice of judges to sit on panels, to the final outcome. The main argument of the book is that judges' behavior is strongly affected by their specialism in different areas of law. Cases in tax law (or family law, or public law) are more likely to be heard by specialists in that area, and those specialists are more likely to write the court's decision—or disagree with the decision when there is dissent. Legal factors like specialization in areas of law explains more of the court's work than do political differences between judges.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

Algorithmic Governance by Online Intermediaries

2019 ◽  
Author(s):  
Niva Elkin-Koren ◽  
Maayan Perel
Keyword(s):  
Risk Management ◽  
Law Enforcement ◽  
Public Discourse ◽  
Critical Role ◽  
Public Law ◽  
Online Content ◽  
Private Ordering ◽  
Algorithmic Accountability ◽  
Copyright Enforcement

In recent years, there is a growing use of algorithmic law enforcement by online intermediaries. Algorithmic enforcement by private intermediaries is located at the interface between public law and private ordering. It often reflects risk management and commercial interests of online intermediaries, effectively converging law enforcement and adjudication powers, at the hands of a small number of mega platforms. At the same time, algorithmic governance also plays a critical role in shaping access to online content and facilitating public discourse. Yet, online intermediaries are hardly held accountable for algorithmic enforcement, even though they may reach erroneous decisions. Developing proper accountability mechanisms is hence vital to create a check on algorithmic enforcement. Accordingly, relying on lessons drawn from algorithmic copyright enforcement by online intermediaries, this chapter demonstrates the accountability deficiencies in algorithmic copyright enforcement; maps the barriers for algorithmic accountability and discusses various strategies for enhancing accountability in algorithmic governance.

Legal problems of the paternity institution: Child's rights ensuring issues

2020 ◽  
pp. 267-286
Author(s):  
Mikhail A. Gussev ◽  
Yessil S. Rakhmetov ◽  
Aliya K. Berdibayeva ◽  
Ainash Yessekeyeva
Keyword(s):  
Human Rights ◽  
Gender Identity ◽  
Family Law ◽  
Public Law ◽  
Practical Significance ◽  
Social Constructs ◽  
Social Forms ◽  
Rights Of The Child ◽  
Legal Problems ◽  
The Family

The aim of the article is to analyze the paternity as a component of the institution of the family, its modern transformations and the resulting challenges, including modern features of parenthood. The authors show that the modern understanding of paternity is determined by gender identity and social constructs that equalize the rights of all persons who act as guardians of the child. The authors determine that the problem of paternity involves not only civil issues, but also family and in-ternational law. The authors of the article clearly show that paternity can act not only as a voluntary, conscious act, but also as a mandatory legal norm. In particu-lar, the authors note that it is possible to use the method of establishing paternity or delegating part of the authority to raise a child in the context of considering public law and its prevalence over family law. The practical significance of the study is determined by the fact that the importance of establishing the principles, as well as the legal conditions for implementing the functions of paternity, will form not only legal but also social forms and even economic parameters for citi-zens and address issues of ensuring human rights, including the rights of the child.

The Role of Private Ordering in Family Law: A Law and Economics Perspective

1991 ◽  
Vol 41 (4) ◽  
pp. 533 ◽  
Author(s):  
Michael J. Trebilcock ◽  
Rosemin Keshvani
Keyword(s):  
Law And Economics ◽  
Family Law ◽  
Private Ordering

scholarly journals A millstone around the neck? Stereotypes about wives and myths about divorce

2019 ◽  
Vol 70 (2) ◽  
pp. 181-201
Author(s):  
Sharon Thompson
Keyword(s):  
Family Law ◽  
Current Policy ◽  
Private Ordering ◽  
Substantive Equality ◽  
Judicial Reasoning ◽  
The Law ◽  
Existent Problem ◽  
Gendered Stereotypes ◽  
The Way

This article examines the effect of and connection between stereotypes about wives and myths about financial provision on divorce. It is based on an assessment of press reports on Mills v Mills which have fuelled calls for reform of the law of financial provision on divorce, most notably the Divorce (Financial Provision) Bill 2017–2019. It argues that gendered stereotypes about wives (such as ‘alimony drone’, ‘gold-digger’ and ‘meal ticket for life’) inhibit shifts towards substantive equality for women. These gendered stereotypes have not only framed the debate, creating a non-existent problem for reform proposals to solve, but have also affected the way in which individuals form family law agreements, which is important given the current policy emphasis on private ordering. The article concludes by proposing that reflexive engagement with stereotypes about wives should be an important part of judicial reasoning.

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