The paradoxes of legal paternalism and how to resolve them

Legal Studies ◽  
2010 ◽  
Vol 30 (1) ◽  
pp. 61-73 ◽  
Author(s):  
Anthony Ogus
Keyword(s):  
Policy Making ◽  
Fundamental Importance ◽  
Freedom Of Choice ◽  
Legal Literature ◽  
Soft Paternalism ◽  
Technological Developments ◽  
The Law ◽  
Benefit Cost

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

Authority by Aggregation and Abstraction

2017 ◽  
Author(s):  
Rebecca Skreslet Hernandez
Keyword(s):  
Pragmatic Theory ◽  
Legal Thought ◽  
Universal Principles ◽  
Legal Literature ◽  
Religious Learning ◽  
The Law ◽  
Substantive Law ◽  
Lasting Influence

In addition to his views on ijtihād and tajdīd, al-Suyūṭī’s lasting influence in Islamic legal thought lies in the area of legal precepts (pithy maxims or questions that sum up areas of the law). Al-Suyūṭī’s al-Ashbāh wa-l-naẓāʾir stands as a core work in this genre of legal literature and is still a popular textbook for students at Egypt’s premier institution of religious learning, al-Azhar. Using the pragmatic theory of Grice and others, I argue that legal precepts fulfill a number of key discursive functions for the jurist. It is with al-Suyūṭī’s Ashbāh that he is most successful in asserting his authority as an aggregator, abstractor, and framer of the law. The power of framing lies in the ability to distill key universal principles from the vast corpus of Islamic substantive law and to assert that these principles represent the essence and spirit of the Sharīʿa.

scholarly journals Prohibition of interrogation of notaries as witnesses in criminal proceedings

1970 ◽  
pp. 345-349
Author(s):  
Ulyana Polyak
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
The Law ◽  
Notary Public ◽  
Made In

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.

scholarly journals ОПЕРАЦИЯЛЫҚ ІЗДЕУ ҚЫЗМЕТІНІҢ ЗАҢНАМАЛЫҚ РЕТТЕУЛЕРІН ЖАҚСАРТУ ЖОЛЫМЕН ҚЫЛМЫСҚА ҚАРСЫ КҮРЕС МӘСЕЛЕЛЕРІН ШЕШУ

2021 ◽  
pp. 163-169
Author(s):  
Ахметкали Шаймуханов
Keyword(s):  
Comparative Analysis ◽  
Law Enforcement ◽  
Legal Norms ◽  
Legal Literature ◽  
The Law ◽  
The Republic ◽  
Analysis And Study

В статье рассматриваются и анализируются некоторые положения действующего оперативно-розыскного законодательства Республики Казахстан. На основе сравнительного анализа и изучения юридической литературы поднимаются проблемы, возникающие в правоприменительной деятельности при реализации отдельных положений закона. Автором вносятся предложения и рекомендации по совершенствованию правовых норм, направленные на решение задач, связанных с профилактикой, предупреждением и пресечением наиболее опасных уголовных преступлений. Мақалада Қазақстан Республикасының қолданыстағы жедел-іздестіру заңнамасының кейбір ережелері талқыланып, талданған. Салыстырмалы талдау және заң әдебиеттерін зерттеу негізінде заңның белгілі бір ережелерін жүзеге асыру кезінде құқық қорғау органдарында туындайтын проблемалар көтеріледі. Автор аса қауіпті қылмыстық құқық бұзушылықтардың алдын алуға, алдын алуға және жолын кесуге байланысты мәселелерді шешуге бағытталған құқықтық нормаларды жетілдіру бойынша ұсыныстар мен ұсыныстар енгізеді. The article discusses and analyzes some of the provisions of the current operational-search legislation of the Republic of Kazakhstan. Based on comparative analysis and study of legal literature, the problems arising in law enforcement activities in the implementation of certain provisions of the law are raised. The author makes suggestions and recommendations for improving legal norms aimed at solving problems related to the prevention, prevention and suppression of the most dangerous criminal offences.

Introductory Remarks by Catherine Redgwell

2017 ◽  
Vol 111 ◽  
pp. 241-242
Author(s):  
Catherine Redgwell
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
Change Over Time ◽  
Evolution And Development ◽  
Technological Developments ◽  
United Nations Convention ◽  
The Law ◽  
Over Time

Although negotiated as a “package deal,” ostensibly comprehensive in scope and universal in its participation, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was always intended to be capable of further evolution and development. Inevitably strategic interests change over time, and “economic and technological developments have increased the ability to access and harvest the [living and nonliving] resources of the sea and the seabed.” At the same time our knowledge of the oceans, the earth's largest ecosystem (~1.3 billion km3), has continued to evolve, despite large gaps that remain in our understanding.

scholarly journals Risk and responding to self injury: is harm minimisation a step too far?

2019 ◽  
Vol 14 (1) ◽  
pp. 1-11
Author(s):  
Patrick Joseph Sullivan
Keyword(s):  
Health Professionals ◽  
Design Methodology ◽  
Legal Obligation ◽  
Clinical Environment ◽  
Harm Minimisation ◽  
Content Type ◽  
Self Injury ◽  
Legal Literature ◽  
Legal Implications ◽  
The Law

Purpose The purpose of this paper is to consider some of the legal implications of adopting a harm minimisation approach in supporting people who self-injure within inpatient mental health units. It is argued that a focus on risk and the increasing influence of the law and legal styles of thinking often associated with the allocation of blame have produced a more risk adverse clinical environment. As a result health professionals are more likely to err on the side of caution rather than engage in practices that although potentially therapeutic are not without their risks. Design/methodology/approach The analysis draws on the clinical, philosophical and legal literature to help understand how harm minimisation may support people who self-injure. It considers some of the complex medico-legal issues that arise in a clinical environment dominated by risk. Findings A focus on risk and accountability has produced an environment where the law and legal styles of thinking have come to influence practice. This is often associated with blame in the minds of the health professional. Given the legal obligation to prevent suicide, health professionals may take a conservative approach when working with people who self-injure. This makes the adoption of harm minimisation difficult. Originality/value This paper provides a legally informed analysis of some of the challenges associated with using harm minimisation techniques with people who self-injure. It adds to the literature regarding this area of clinical practice.

scholarly journals Guide to the Law and Legal Literature of France

1932 ◽  
Vol 32 (5) ◽  
pp. 931
Author(s):  
F. D. ◽  
George Wilfred Stumberg
Keyword(s):  
Legal Literature ◽  
The Law

Indian Legal Literature

2008 ◽  
Vol 36 (2) ◽  
pp. 300-302
Author(s):  
Surendra Malik
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Legal Literature ◽  
Statutory Law ◽  
The Law

Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion-based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English.

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