Fiduciary Law

2020 ◽  
pp. 308-324
Author(s):  
W. Bradley Wendel
Keyword(s):  
Recent Work ◽  
Legal Theory ◽  
Normative Theory ◽  
Normative Values ◽  
Private Law ◽  
Context Specificity ◽  
Rational Structure ◽  
Legal Doctrine ◽  
Normative Pluralism

This chapter assesses fiduciary law within the framework of private law theory. Fiduciary law and private law theory seem made for one another. Fiduciary law is centrally focused on the morally attractive end of maintaining relationships of trust and confidence among individuals. But it does so by bracketing highly abstract normative theory in favor of well-developed legal constructs such as duties of loyalty and care. It is comfortable with pluralism, complexity, and context-specificity. Moreover, it represents a rational structure that is not wholly dependent on external criteria yet does not aspire to strict independence from empirical considerations and normative values. Fiduciary law nevertheless poses some challenges for private law theory. As an evolving field, it may grow in unanticipated directions and risk the loss of its former coherence. The possibility of this loss of a coherent organizing structure has motivated considerable recent work in the theory of fiduciary law, and also in legal theory more generally, as scholars seek to understand how normative pluralism can coexist with stable, rational legal doctrine.

scholarly journals Normative and Legal Pluralism: A Global Perspective

2021 ◽  
pp. 30-66
Author(s):  
William Twining
Keyword(s):  
Institutional Design ◽  
Legal Theory ◽  
Legal Pluralism ◽  
Normative Theory ◽  
Global Perspective ◽  
Social Fact ◽  
Raising Awareness ◽  
Wide Range ◽  
Theory Section ◽  
Normative Pluralism

This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Section III suggests that social fact pluralism has achieved much in raising awareness of nonstate normative orders, but provides little guidance on issues of state policy and institutional design. Section IV considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by “globalization” and argues that the radically ambiguous idea of “global legal pluralism” is being applied to such a variety of phenomena and concerns as to be virtually meaningless.

Concluding Remarks

2021 ◽  
pp. 436-454
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Legal Theory ◽  
Private Law ◽  
Normative Pluralism

Chapter 9 presents the main conclusions from this inquiry and also offers a few wider concluding observations on justification, private law essentialism, normative pluralism, democratic compromise, and the limits of legal theory.

scholarly journals Legal-theoretical characteristics and legal-dogmatic development of German law of general terms and conditions

2021 ◽  
pp. 343-359
Author(s):  
Slobodan Vukadinović
Keyword(s):  
Legal Theory ◽  
German Law ◽  
Civil Code ◽  
Normative Theory ◽  
The European Union ◽  
Legal Doctrine ◽  
Legal Concept ◽  
Consumer Law ◽  
General Terms ◽  
German Speaking

The aim of this paper is to explore the specifics of the Germ an approach in resolving legal issues that are raised regarding general terms and conditions. Applying legal-dogmatic, comparative and legal-historical methods, the paper examines the characteristics and basic directions of development of Germ an legal theory and legislation regarding general terms and conditions. The basics of understanding legal doctrine on the character and legal nature of general terms and conditions are laid out chronologically according to the time of creation and period of dominant influence. The paper highlights the extent to which the legal-theoretic and legal-dogmatic development of German law regarding general terms affected other German-speaking countries, primarily Austria and Switzerland. Legal theoretic development in German law ranged from the strong dominance of normative theory to its strong critics that led to the empowerment of contractual theory. Norm ative legal development is characterized by the principle 'from a special law to the general part of the civil code'. The review of the relevant BGB paragraphs shows that when amending paragraphs of the BGB, the legal concept, which was shaped through German theory and legislation in a coherent whole and in a special law on regulating the general terms and conditions law, was preserved. The provisions of that law were essentially taken into the German Civil Code in 2002 as part of the reform of German contract law. This law not only affected the development of other national legal systems, but also had some impact on the development of consumer law at the European Union level. Namely, some of its provisions were used as the basis for one of the most important directives concerning unfair contractual provisions. The paper also points to the current mechanisms for controlling general terms and conditions through the control of the validity of inclusion (incorporation), the black and grey list of contractual provisions and the general clause.

scholarly journals Is and Ought? How the (Social) Ontological Circumscribes the Normative

2020 ◽  
Vol 24 (4) ◽  
pp. 509-525
Author(s):  
Dorothea Gädeke
Keyword(s):  
Well Being ◽  
Normative Theory ◽  
Normative Values ◽  
Relational Ontology ◽  
Individual Values ◽  
The Social ◽  
Argument Proceeds ◽  
Ontological Position ◽  
Point Of Departure ◽  
Normative Content

Abstract Is normative theory grounded in ontology and if so, how? Taking a debate between Kwame Gyekye and Thaddeus Metz as my point of departure, my aim in this article is to show that something normative does indeed follow from ontological views: The social ontological, I maintain, circumscribes the normative without, however, fully determining its content. My argument proceeds in two steps: First, I argue that our social ontological position constrains what kind of normative theory we may plausibly defend. A relational ontology as defended by Gyekye entails a relational normative theory, whereas an atomist ontology calls for an individualist normative approach and a collectivist ontology for a strong communitarian one. Second, this link between the ontological and the normative has substantive implications for how to interpret the normative content of a theory; it entails interpreting normative values in light of the appropriate kind of normative thought. I illustrate the importance of this implication by showing that it suggests a decidedly relational reading of the core value of well-being in Gyekye’s moderate communitarianism, that resolves the alleged tension between communal and individual values in his account.

Fidelity in interpretation: Lord Hoffmann and The Adventure of the Empty House

Legal Studies ◽  
2008 ◽  
Vol 28 (1) ◽  
pp. 1-19 ◽  
Author(s):  
James Lee
Keyword(s):  
Recent Work ◽  
Institutional Structure ◽  
Private Law ◽  
The Past ◽  
House Of Lords ◽  
A Chain

This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

scholarly journals Liberal Feminism, from Law to Art: The Impact of Feminist Jurisprudence on Feminist Aesthetics

Hypatia ◽  
2003 ◽  
Vol 18 (4) ◽  
pp. 214-235
Author(s):  
L. Ryan Musgrave
Keyword(s):  
Recent Work ◽  
Legal Theory ◽  
Feminist Jurisprudence ◽  
Feminist Legal Theory ◽  
Liberal Feminism ◽  
Critical Feminist ◽  
Legal Concepts ◽  
Feminist Aesthetics ◽  
The Impact

This essay explores how early approaches in feminist aesthetics drew on concepts honed in the field of feminist legal theory, especially conceptions of oppression and equality. I argue that by importing these feminist legal concepts, many early feminist accounts of how art is political depended largely on a distinctly liberal version of politics. I offer a critique of liberal feminist aesthetics, indicating ways recent work in the field also turns toward critical feminist aesthetics as an alternative.

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 Judges’ Virtues and Vices: Outline of a Research Agenda for Legal Theory

2019 ◽  
pp. 51-62
Author(s):  
Tomasz Widłak
Keyword(s):  
Role Models ◽  
Public Discourse ◽  
Legal Theory ◽  
Civil Law ◽  
Normative Theory ◽  
Ethical Standards ◽  
Judicial Decision Making ◽  
Research Areas ◽  
The Status ◽  
Selection Of

This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.

Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

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