Resiling from the Anns principle: the variable nature of proximity in negligence

Legal Studies ◽  
1987 ◽  
Vol 7 (3) ◽  
pp. 319-332 ◽  
Author(s):  
Richard Kidner
Keyword(s):  
Prima Facie ◽  
Conceptual Approach ◽  
London Borough ◽  
Variable Nature ◽  
The Law ◽  
Prima Facie Duty ◽  
Different Levels

For a number of years there has been considerable criticism of both Donoghue v Stevenson and Anns v London Borough of Merton on the grounds that the prima facie duty doctrine which some believe those cases established is so wide as to be meaningless and obscures more than it reveals. This article seeks to show how the courts have come to accept this criticism and to indicate how the concept of duty should now be viewed. In particular the point is that there are now different levels of proximity required to establish a duty in different situations and that while this means that the various categories of duty must be distinguished from each other, this does not involve ossification of the law, but rather development of the law may be made easier by a pragmatic rather than a conceptual approach. The principle that 'the categories of negligence are never closed’ means both that existing duties may be refined and extended, and also that new duties may be created. How that can be done depends on our understanding of the nature of the concept of duty and how each step should be taken.

scholarly journals What Has Become of Anns

1969 ◽  
pp. 673
Author(s):  
W. S. Schlosser
Keyword(s):  
Economic Loss ◽  
Prima Facie ◽  
London Borough ◽  
Council Decision ◽  
District Council ◽  
House Of Lords ◽  
Canadian Law ◽  
The Law ◽  
Prima Facie Duty ◽  
Public Bodies

The author examines the effects on Canadian law of a recent House of Lords decision overruling the case of Anns v. Merton London Borough. The author begins by tracing the development of the law of negligence from its beginnings in Donoghue v. Stevenson, through the Rivtow Marine decision in Canada, to the House of Lords decision in Anns, its treatment of the concept of economic loss, and the subsequent Canadian decisions in this area. The author then considers the building criticism of the Anns case and it ultimate downfall in the Murphy v. Brentwood District Council decision. The author highlights several results of this decision including: (1) the fallacy of ignoring the type of loss involved and beginning with a prima facie duty based on the mere foreseeability of damage; (2) the much higher degree of proximity required if damage is economic; and (3) the necessity of having regard to the statutory framework where the liability of public bodies is in issue. The author finally considers the Canadian jurisprudence in this area and concludes that, for the most part, the Canadian position will not be affected by the demise of Anns.

scholarly journals Border-Crossing: Immigration Law, Racism and Justified Resistance

2021 ◽  
pp. 003232172110301
Author(s):  
Guy Aitchison
Keyword(s):  
International Law ◽  
Civil Disobedience ◽  
Prima Facie ◽  
Border Crossing ◽  
Immigration Law ◽  
Coercive Power ◽  
The Core ◽  
The Law ◽  
Prima Facie Duty ◽  
Political Character

Aside from the case of refugees under international law, are non-citizen outsiders morally justified in unlawfully entering another state? Recent answers to this question, based on a purported right of necessity or civil disobedience, exclude many cases of justified border-crossing and fail to account for its distinctive political character. I argue that in certain non-humanitarian cases, unlawful border-crossing involves the exercise of a remedial moral right to resist the illegitimate exercise of coercive power. The case accepts, for the sake of argument, two conventional assumptions among defenders of immigration restrictions: that states have a ‘right to exclude’ and that migrants have a prima facie duty to respect borders. Nonetheless, where immigration law is racist or otherwise discriminatory, it violates the egalitarian standards at the core of any authority it can plausibly claim over outsiders. In such cases, it may be resisted even where the law is facially non-discriminatory.

The Normative Force of Law

2018 ◽  
Author(s):  
Liam Murphy
Keyword(s):  
International Law ◽  
Prima Facie ◽  
Legal Rule ◽  
Moral Value ◽  
Normative Force ◽  
Moral Force ◽  
Instrumental Case ◽  
The Law ◽  
Prima Facie Duty ◽  
Institutional Order

After distinguishing some other senses of the “normativity” of law, this chapter addresses its moral force. It is argued that all deontological accounts of a prima facie duty to obey the law, other than the argument from consent, fail for being unable to show that the moral value of law as an institutional order implies a duty to obey each and every legal rule. The argument from consent fails for familiar reasons. This leaves an instrumental account of the moral force of law as the only option. The upshot is that, for individuals, the moral force of law is variable, and often weak. The case is different for state officials, as subjects of either domestic or international law. Here the instrumental case for obedience is typically strong.

Desafíos del sistema de educación superior en Ecuador para la era de la complejidad

2016 ◽  
pp. 89
Author(s):  
Martha Concepción Macías ◽  
Francisco Mendoza Moreira
Keyword(s):  
Higher Education ◽  
Education System ◽  
Educación Superior ◽  
Higher Education System ◽  
Educacion Superior ◽  
New Challenges ◽  
The Law ◽  
Different Levels

RESUMENLa universidad ecuatoriana, en los últimos seis años, a partir de la aprobación en el año 2010 de la Ley Orgánica de Educación Superior, ha sido expuesta a nuevos retos y desafíos que comprometen a cada uno de los tejidos institucionales participantes en su gestión. Este artículo analiza siete de esos retos en el marco de la ley, de la reflexión epistemológica y las metas que se le plantean como sistema sustancial en el cambio de la matriz cognitiva, productiva y de servicio del país. Los resultados son reflexiones propias de actores del sistema educativo superior que se desenvuelven en diferentes planos de intervención, quienes proponen acciones inmediatas y mediatas para alcanzar una Universidad adaptable a la Era de la Complejidad.Palabras clave: Sistema de Educación Superior, Era de la Complejidad, Ley Orgánica de Educación Superior. Challenges of Higher Education System in Ecuador for the Age of ComplexityABSTRACTIn the last six years since the adoption of the Law on Higher Education in 2010, the Ecuadorian university has been exposed to new challenges compromising every institution participating in its management. This article analyzes seven of those challenges within the Law framework, the epistemological reflection and the goals presented as substantial in changing the cognitive, productive and service matrix in the country. The results are reflections by actors in the higher education system working at different levels of intervention, who propose immediate and mediate actions to achieve a University adaptive to the Age of Complexity.Keywords: Higher education system, age of complexity, Law of Higher Education.

MANAJEMEN PENGAWASAN PERATURAN DAERAH DILAHAT DARI PERUNDANGAN-UNDANGAN

2017 ◽  
Vol 5 (3) ◽  
Author(s):  
Dr. Hotma Napitupulu, MM.
Keyword(s):  
Secondary Data ◽  
Empirical Method ◽  
Conceptual Approach ◽  
Regulatory Oversight ◽  
Secondary Data Source ◽  
Approach Method ◽  
Data Source ◽  
The Law ◽  
Harmonization Of Law ◽  
Legal Consequences

Management of regulatory oversight under the law, analyze the legal consequences with its use as a system of legal oversight mechanisms in order to create harmonization of law in the region. As for the method used in research by using empirical method that is by conceptual approach method with primary and secondary data source. As for the method used in research by using empirical method that is by conceptual approach method with primary and secondary data source.

scholarly journals The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977

2019 ◽  
Vol 31 (1) ◽  
pp. 81-120
Author(s):  
’Mampolokeng ’Mathuso Mary-Elizabet Monyakane
Keyword(s):  
South African ◽  
Criminal Procedure ◽  
Prima Facie ◽  
The South ◽  
Simple View ◽  
The Law ◽  
Criminal Matters ◽  
Law Of Evidence

AbstractThe Prima facie view regarding the admissibility of admissions, as evidence, in criminal matters is that, to admit admissions as evidence, the court requires a single consideration as to whether the admission was made freely and voluntarily. Without too much ado, the simple view to this understanding presupposes that admission of an admission as evidence against its maker is of a lesser danger compared to the admission of a confession. The admissibility of confessions against their makers does not come as easily as that of admissions. There are many prescribed requirements to satisfy before confessions are admitted as evidence. This comparison has led to a questionable conclusion that requirements for the admissibility of admissions are of a less complexity equated to the requirements for the admission of confessions. This paper answers the question whether an inference that the requirements for the admissibility of admissions are of a less complexity compared to the requirements for the admission of confessions is rational? It equates this approach to the now done away with commonwealth states rigid differentiation perspective. In the 1800s the commonwealth states, especially those vowing on the Wigmorian perspective on the law of evidence, developed from a rigid interpretation of confessions and admissions and adopted a relaxed and wide definitions of the word, “confession.” To this extent there was a relaxed divide between confessions and admissions hence their common classification and application of similar cautionary rules. The article recounts admissibility requirement in section 219A of the South African Criminal Procedure Act 51 of 1977 (CPA) (Hereinafter CPA). It then analyses Section 219A of the CPA requirement in the light of the rationale encompassing precautions for the admission of confessions in terms of 217(1) of the CPA. It exposes the similarities of potential prejudices where confessions and admissions are admitted as evidence. It reckons that by the adherence to this rigid differentiation perspectives of confessions and admissions which used to be the practice in the commonwealth prior the 1800s developments, South African law of evidence remains prejudicial to accused persons. To do away with these prejudices this article, recommends that section 219A be amended to include additional admissibility requirements in section 217(1). In effect it recommends the merging of sections 217(1) and 219A of the CPA.

Intrafamilial Organ Donation Is Often an Altruistic Act

2003 ◽  
Vol 12 (1) ◽  
pp. 116-118 ◽  
Author(s):  
Aaron Spital
Keyword(s):  
Young Children ◽  
Organ Donation ◽  
Genetic Relationship ◽  
Recent Article ◽  
Family Members ◽  
Prima Facie ◽  
Moral Obligations ◽  
Logical Conclusion ◽  
Prima Facie Duty

In their recent article, Glannon and Ross remind us that family members have obligations to help each other that strangers do not have. They argue, I believe correctly, that what creates moral obligations within families is not genetic relationship but rather a sharing of intimacy. For no one are these obligations stronger than they are for parents of young children. This observation leads the authors to the logical conclusion that organ donation by a parent to her child is not optional but rather a prima facie duty. However, Glannon and Ross go a step further by suggesting that because parent-to-child organ donation is a duty, it cannot be altruistic. They assert that “altruistic acts are optional, nonobligatory…supererogatory…. Given that altruism consists in purely optional actions presupposing no duty to aid others, any parental act that counts as meeting a child's needs cannot be altruistic.” Here I think the authors go too far.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

UPAYA HUKUM TERHADAP ORANGTUA YANG TIDAK MELAKSANAKAN KEWAJIBAN ALIMENTASI DALAM PERSPEKTIF PERLINDUNGAN ANAK

2019 ◽  
Vol 7 (2) ◽  
pp. 307
Author(s):  
Tyas Sekar Mawarni ◽  
Anjar Sri Ciptorukmi Nugraheni
Keyword(s):  
Child Protection ◽  
Theoretical Studies ◽  
Cost Of Living ◽  
Legal Research ◽  
Conceptual Approach ◽  
Family Problems ◽  
The Law ◽  
The Right ◽  
Legal Substances

<p>Abstract</p><p>The purpose of this study is to explain the legal efforts that can be done if the parents do not implement the obligation of alimentation in the perspective of child protection. The method used is the method of legal research normatif (legal research), with the approach of the law (statute approach) and conceptual approach (conseptual approach). The legal substances used in this study include primary and secondary legal materials. The results of this study explain the parental remedies that do not carry out alimentation obligations in theoretical studies can be done by litigation or court and non-litigation or out of court. However, for non-litigation settlement in Indonesia is not yet available for family problems. Legal efforts through litigation may include the filing of livelihood rights and the execution of a permanent judge’s decision regarding the right of alimentation (cost of living).</p><p>Keywords: Legal effort;alimentation obligation; child; and child protection.</p><p> </p><p>Abstrak</p><p>Tujuan penelitian ini ialah untuk menjelaskan upaya hukum yang dapat dilakukan apabila orangtua tidak melaksanakan kewajiban alimentasi dalam perspektif perlindungan anak.Metode yang digunakan ialah metode penelitian hukum normatif (legal research), dengan pendekatan undang-undang (statute approach) dan pendekatan konseptual (conseptual approach).Bahan hukum yang dipergunakan dalam penelitian ini meliputi bahan hukum primer dan sekunder.Hasil penelitian ini menjelaskan mengenai upaya hukum orangtua yang tidak melaksanakan kewajiban alimentasi secara kajian teoritis dapat dilakukan dengan litigasi atau pengadilan dan non-litigasi atau di luar pengadilan.Namun, untuk penyelesaian melalui nonlitigasi di Indonesia belum difasilitasi Negara Mengenai masalah keluarga. Upaya hukum melalui Litigasi dapat berupa pengajuan hak nafkah dan eksekusi putusan hakim yang berkekuatan tetap mengenai hak alimentasi (biaya nafkah).</p><p>Kata Kunci: Upaya hukum; kewajiban alimentasi;anak;dan perlindungan anak.</p>

A Prima Facie Duty Approach to Machine Ethics

2011 ◽  
pp. 476-492 ◽  
Author(s):  
Susan Leigh Anderson ◽  
Michael Anderson
Keyword(s):  
Prima Facie ◽  
Machine Ethics ◽  
Prima Facie Duty
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