The role of pragmatics in (re)constructing the rational law-maker

2013 ◽  
Vol 21 (2) ◽  
pp. 399-414 ◽  
Author(s):  
Alessandro Capone

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski (1991), between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism (see Manning 2005, 2006), I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary proceedings and legal texts. I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski (1991). I argue that contextualism (of the moderate kind) is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker (also see considerations by Fish 2005); (on contextualism see Dascal and Weizman 1987). I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s (1997) textualism and contextualism (see Manning 2005, 2006 on the divide between textualism and contextualism).

Author(s):  
András Sajó ◽  
Renáta Uitz

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.


2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.


2021 ◽  
pp. 1-29
Author(s):  
Jette Steen Knudsen ◽  
Jeremy Moon

We investigate the relationship of corporate social responsibility (CSR) (often assumed to reflect corporate voluntarism) and government (often assumed to reflect coercion). We distinguish two broad perspectives on the CSR and government relationship: the dichotomous (i.e., government and CSR are / should be independent of one another) and the related (i.e., government and CSR are / should be interconnected). Using typologies of CSR public policy and of CSR and the law, we present an integrated framework for corporate discretion for engagement with public policy for CSR. We make four related contributions. First, we explain the dichotomous and the related perspectives with reference to their various assumptions and analyses. Second, we demonstrate that public policy for CSR and corporate discretion coexist and interact. Specifically, we show, third, that public policy for CSR can inform and stimulate corporate discretion and, fourth, that corporations have discretion for CSR, particularly as to how corporations engage with such policy.


2020 ◽  
Vol 2 (1) ◽  
pp. 160-178
Author(s):  
Piseth Chann

ABSTRAKEksploitasi terhadap tenaga kerja di laut lepas, khususnya ABK, masih sering terjadi. Meskipun tidak diatur secara spesifik, keselamatan dan keamanan ABK dapat dikaitkan dengan KHL PBB 1982, Pasal 94. Tujuan dari kajian ini adalah untuk menjelaskan keterkaitan Pasal 94 KHL dengan perlindungan terhadap ABK, peran IMO terhadap keselamatan dan keamanan ABK, dan kerja sama antara IMO dan ILO dalam menangani masalah eksploitasi sumber daya manusia dalam pelayaran internasional. Dari kajian ini dapat dijelaskan bahwa dalam KHL PBB 1982, Pasal 94 Ayat 2 (b) dan 3 (b) terdapat kewajiban yang dibebankan kepada Negara Bendera untuk ikut bertanggung jawab jika ABK mendapatkan suatu masalah. Sementara itu, sebagai agen khusus PBB, IMO telah mengadopsi satu Kode Manajemen Internasional dengan tujuan untuk memastikan keselamatan manusia dan menghindari kerusakan lingkungan laut. IMO, ILO dan Ad Hoc juga membentuk kerja sama tripartit untuk mengatur hal-hal yang berkaitan dengan ketenagakerjaan di laut. Kata Kunci: anak buah kapal; IMO; ILO; keselamatan dan keamanan ABSTRACTExploitation of workers on the high seas, especially the ship's crew, is still common. Although not specifically regulated, the safety and security of the ship's crew can be linked to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), Article 94. The purpose of this study is to explain the relationship between Article 94 UNCLOS and the protection of ship's crew, the role of International Maritime Organization (IMO) in the safety and security of ship's crew, and cooperation between IMO and ILO in dealing with the problem of exploitation of human resources in international shipping. From this study, it can be explained that in the 1982 United Nations Convention on the Law of the Sea, Article 94 Paragraphs 2 (b) and 3 (b) there was an obligation imposed on the Flag State to take responsibility if the ship's crew had a problem. Meanwhile, as a UN special agent, IMO has adopted an International Management Code to ensure human safety and avoid damage to the marine environment. IMO, ILO and Ad Hoc also formed tripartite cooperation to regulate matters related to employment at sea.Keywords: ILO; IMO; security and safety; ship's crew


Author(s):  
Robert Jago

This chapter focuses on the lived experiences of gypsies (collectively referred to as gypsies rather than Roma or travellers). The author argues that the relationship between the legal system and the specific lifestyle of this group is itself causing many tensions which cannot be separated from the long-held myths about gypsies. Jago shows how the standing of gypsies in the UK legal system has, in turn, become the object of various myths. He demonstrates how judgements by the European Court of Human Rights in favour of gypsy claims created in many an image of the law being always on the side of the gypsy. A perception which Jago demonstrates is far from true. After addressing the nature and role of myths in general the author illustrates the tension between positive, romanticised myths about the freedom of gypsy lifestyle and three derogatory myths, namely gypsies as "child-snatchers", as thieves and as "land grabbers". Jago illustrates that these myths are linked to deep-rooted beliefs around property and its ownership.


2018 ◽  
Vol 20 (4) ◽  
pp. 295-306
Author(s):  
Christopher J. Schneider

Pogonotrophy refers to beard cultivation including growth and grooming practices. This exploratory study contributes to the little understood role of beard culture on YouTube. Scholarship examining the relationship between social media platforms such as YouTube and beard culture is almost nonexistent. This gap in the research allows us to ask the following: What sorts of content do users circulate about beards on YouTube? And, how does this content contribute to how users interact and learn about beards? A total of 62,061 user-generated comments across 310 videos featured on the Beardbrand YouTube channel were collected and examined using qualitative media analysis. Three themes emerged from an analysis of these data: the yeard quest, the ideal type, and how to beard. The findings illustrate the important role that YouTube plays in fostering contemporary beard culture. Suggestions for future research are noted.


2020 ◽  
pp. 1-13 ◽  
Author(s):  
Kornelia Kończal

In early 2018, the Polish parliament adopted controversial legislation criminalising assertions regarding the complicity of the ‘Polish Nation’ and the ‘Polish State’ in the Holocaust. The so-called Polish Holocaust Law provoked not only a heated debate in Poland, but also serious international tensions. As a result, it was amended only five months after its adoption. The reason why it is worth taking a closer look at the socio-cultural foundations and political functions of the short-lived legislation is twofold. Empirically, the short history of the Law reveals a great deal about the long-term role of Jews in the Polish collective memory as an unmatched Significant Other. Conceptually, the short life of the Law, along with its afterlife, helps capture poll-driven, manifestly moralistic and anti-pluralist imaginings of the past, which I refer to as ‘mnemonic populism’. By exploring the relationship between popular and political images of the past in contemporary Poland, this article argues for joining memory and populism studies in order to better understand what can happen to history in illiberal surroundings.


1991 ◽  
Vol 1 (4) ◽  
pp. 281-293 ◽  
Author(s):  
Anita K. Barry

Abstract This article is concerned with the relationship between a witness' narrative style and judgments of jurors based on that style. It takes as its starting point the Duke University Law and Language Project results that a witness using a narrative style is judged more credible than a witness using a fragmented style. The main argument of this article is that it is not the use of narrative per se, but rather a particular narrative style that is valued in the courtroom. Data from a day of testimony in a murder trial is used to demonstrate two opposing narrative styles in testimony: that of the law enforcement officer and that of some nonexpert witnesses. It is shown first that the style of the law enforcement officers differs from ordinary conversation in its extreme explicitness. It is hypothesized that jurors will associate this style of delivery with credibility. It is further hypothe-sized that witnesses will lose credibility to the extent that they deviate from this style. After demonstrating the differences in the styles, the article draws on experimental work of other researchers to suggest that trial outcomes can be affected by the narrative style of the witness. (Linguistics)


2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Paul Key

The recognition of the defence of change of position in Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.C. 548 was a landmark for the law of restitution. In the ten years which have followed Lipkin Gorman, courts and academics have been involved in two, closely related, tasks: first, a description of the content and nature of the defence of change of position; and, secondly, an analysis of the relationship between change of position and other defences to restitution. An important aspect of the latter task has been the fundamental re-examination of the role of estoppel by representation as a defence to restitution. Two recent cases in the Court of Appeal, Scottish Equitable plc v. Derby [2001] 3 All E.R. 818 and National Westminster Bank plc v. Somer International (UK) Ltd. [2001] Lloyd’s Rep. Bank. 263, indicate that, although estoppel by representation remains a defence, the practical effect of the defence will often be much more limited than had been previously understood.


2019 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Ines Testoni ◽  
Giulia Branciforti ◽  
Adriano Zamperini ◽  
Livia Zuliani ◽  
Felice Alfonso Nava

Purpose Gender inequality and sexism are often at the root of domestic violence against women and children, with both serving to justify male domination. This runs in parallel with mother-blaming bias, which constitutes a pervasive common sense and scientific error derived from the myth of the good and the bad mother, characterising a large part of studies on deviance. The purpose of this paper is to consider the possible role of sexism in prisoners’ deviant biographies; for this, the authors considered the role of the mother in the biographies of prisoners, and the results lend support to the idea that mother-blaming is a serious fallacy. Starting from a critical psychology point of view and following the retrospective methodology, the authors interviewed 22 drug-addicted prisoners through Interpretative Phenomenological Analysis (IPA) regarding their biographies and their relationships with parents and partners. Design/methodology/approach In the survey, the authors followed the same intention, and the results lend support to the idea that mother-blaming is a serious fallacy. The authors interviewed 22 drug-addicted prisoners through IPA concerning their biographies and their relationships with parents and partners. Findings The main result of this qualitative study was the recognition of a fundamental sexism assumed by participants, characterised by a paradox between the representation of the mother and the representation of the ideal woman. Despite the mother being their positive affective referent, and battered by her husband/partner, the same participants had been witnesses of domestic violence, and sometimes victims, they interiorised from their father an ambivalent sexism: benevolent sexism with regard to their mother and exhibited hostile sexism with their partner. On the one hand, it emerged that female empowerment was desirable with respect to the mothers. On the other hand, the ideal woman was exactly as their mother was, that is, being absolutely subordinated to men (a patient, caring, submissive housewife, totally dedicated to her children and her husband). Research limitations/implications From a mainstream psychological perspective, the limits of the research are linked to the utilisation of the narrative method. Also, this methodology does not verify any hypotheses, so quotations from the participants are used to illustrate themes, and thus, it is difficult to report the informational complexities arising from the dialogues. However, the literature has emphasised that these limitations do not invalidate qualitative research findings, despite the difficulties in generalising the results of the qualitative studies. Thereafter, the critical analysis moved within the intersection of experience-centred approaches and the culturally oriented treatment of narratives, so that the focus on the stories of the prisoners makes meaning because it applies structure to experience, albeit, with the form and content of the texts. This research did not permit us to measure and evaluate post-hoc any post-traumatic hypotheses, which, in turn, would give room for further research. Another limitation of the research was that the relationship between culture of origin and gender biases, especially with participants from non-European countries, was not analysed. This topic would require an important in-depth study, which encompasses how women are treated in different countries and its effects on social maladjustment for immigrants in Italy. Practical implications The outcome of this study suggests that within similar structures in the Institute of Mitigated Custody, the theme of sexism should be considered in more depth. Since sexism justifies violence against women, and is therefore a factor that can cause recidivism in the antisocial behaviour of prisoners once they have served their sentences. It is important to allow them to analyse the relationship between their sexist attitudes, witnessing violence in childhood and the possibility of changing moral values of reference in favour of equality. This type of psychological intervention must necessarily be based not only on the elaboration of traumas suffered during childhood with an abusive father, but also on issues related to gender equality and the theme of social inclusion. Social implications The study suggests the idea that male sexism can be a factor responsible for suffering and maladjustment for men and that therefore an education that promotes equality of gender differences can also help prevent the social distress associated with drug addiction and deviance. Originality/value The paper considers some cogent issues inherent to ambivalent sexism that pervades prisoners’ aspirations for their future.


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