The "Right to Die": A Case Study in American Lawmaking*

1996 ◽  
Vol 3 (1) ◽  
pp. 49-74
Author(s):  
Alan Meisel

AbstractIn the 20 years that have passed since the Karen Quinlan case exposed a simmering clinical issue to the light of day — more precisely, to the press and to judicial process — a consensus has developed in American law about how end-of-life decisionmaking should occur. To be sure, there are dissenting voices from this consensus, but they are often (though not always) about minor issues. By illustrating how this consensus has evolved, this paper explores how law is made in the American legal system and the roles that different legal and extra-legal institutions play in lawmaking.

1998 ◽  
Vol 11 (2) ◽  
pp. 245-276
Author(s):  
H. Hamner Hill

Environmental protection laws are a recent legal development. As soon as these statutes first began to appear, it was evident that the fundamental principles of environmental protection would conflict, at some point, with fundamental principles from other, older, substantive bodies of law. In the American legal system, nowhere has the conflict been more serious than between environmental protection law and the law of bankruptcy. While this problem has attracted significant attention in the law reviews, it has been little noticed outside legal circles. This conflict sheds important light on the nature of normative conflicts generally, and points to the need for a well-developed theory of conflict resolution which courts can use when deciding cases. The root of the problem lies in a conflict between the underlying policy goals of these substantive bodies of law such that satisfying one policy objective necessarily undercuts the other. As such, the conflict between bankruptcy and environmental protection should be classified as a normative collision. This discussion examines this normative collision as it exists in American law in some detail. Such an examination provides interesting insights into the nature and pervasiveness of normative conflicts in our legal system. It also serves to illuminate both the theoretical and practical need for a coherent, well developed mechanism for resolving normative conflicts when conflicts arise.


2013 ◽  
Vol 9 (1) ◽  
pp. 73-101 ◽  
Author(s):  
Herwig C.H. Hofmann ◽  
C. Mihaescu

Charter of Fundamental Rights of the EU – Multiple sources of fundamental rights in the EU legal system – Non-hierarchical, pluralistic understanding of their interrelationship – Case study: the right to good administration – Difficulties in defining the scope of the right to good administration under the Charter and that of the right to good administration as a general principle of EU law – Adoption of a pluralistic understanding of the EU fundamental rights’ sources allows for a clarification and improved understanding of the individual's rights in the EU legal system


2011 ◽  
Vol 11 (1) ◽  
pp. 143
Author(s):  
Pedro Díaz Simal ◽  
Saúl Torres Ortega

<div data-canvas-width="377.3732987504456">This paper analyzes the various contributions made in the economic literature that in fluence climate change vulnerability. We try to create conceptual order and transparence in the contributions identifying the assumptions and constraints that each school has introduced into academic debate and practical application. We analyze the conceptual framework that articulates the debate, review the theoretical approaches developed in the literature identifying the object of analysis and the basics of each theory, so that the real model implications are established in each case study. From this scheme we derive a clarifying proposal for organizing theoretical discourse. We specifically focus on the theoretical assumptions underlying each model. We conclude with some criteria for choosing the right models in each case and a general guideline for future research.</div>


2019 ◽  
Vol 52 (3) ◽  
pp. 427-454
Author(s):  
Hassan Jabareen

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.


Author(s):  
Justin A. Joyce

Gunslinging justice explores American Westerns in a variety of media alongside the historical development of the American legal system to argue that Western shootouts are less overtly “anti-law” than has been previously assumed. While the genre’s climactic shootouts may look like a putatively masculine opposition to the codified and mediated American legal system, this gun violence is actually enshrined in the development of American laws regulating self-defense and gun possession. The climactic gun violence and stylized revenge drama of seminal Western texts then, seeks not to oppose "the law," but rather to expand its scope. The book’s interdisciplinary approach, which seeks to historicize and contextualize the iconographic tropes of the genre and its associated discourses across varied cultural and social forms, breaks from psychoanalytic perspectives which have long dominated studies of film and legal discourse and occluded historical contingencies integral to the work cultural forms do in the world. From nineteenth century texts like Cooper's The Last of the Mohicans (1826) and Reconstruction era dime novels, through early twentieth century works like The Virginian, to classic Westerns and more recent films like Unforgiven (1992), this book looks to the intersections between American law and various media that have enabled a cultural, social, and political acceptance of defensive gun violence that is still with us today.


1980 ◽  
Vol 15 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Shmuel Shilo

The Jewish legal system's concept ofKofin al midat S'dom(kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of thekofinprinciple. We will discuss those problems which are dealt with within the framework ofkofineven if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule ofkofinis to be applied, since they have been solved by other legal rules.


2019 ◽  
Vol 20 (1) ◽  
pp. 45-75
Author(s):  
Hrvoje Vargić

The article examines whether countries should legalize euthanasia and assisted suicide. Firstly, context of the debate is provided by defining the key terms and giving the overview of how the debate evolved throughout history. The arguments in favor of legalizing euthanasia and assisted suicide are addressed, namely the argument from autonomy and self–determination and the claim for the “right to die with dignity”. The consequences which were showed to occur in the countries which legalized euthanasia and/or assisted suicide are analyzed, and the case study on the Netherlands and Belgium is made. Finally, the model for the dignity–respecting health–care is proposed followed by the call for bigger accessibility and funding for palliative care.


2004 ◽  
Vol 27 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Ashton Wesley Welch

Some authorities from the antebellum period to the present have located the source of the American law of slavery in continental civil law codes and hence in Roman slave law. They have been unable or unwilling to connect the brutal system of institutionalized racial slavery that emerged in Virginia and elsewhere in the American slave kingdom with what they have perceived as an open, freedom-favoring Anglo-American legal system and have thus sought an explanation of its legal underpinnings in other jurisdictical standards. Both the absence of chattel slavery in English law and the common law's claimed bias in favor of liberty have often been cited as reasons why it is impossible that English law could be the source of such an abomination.


2021 ◽  
Vol 36 (4) ◽  
Author(s):  
Mai Van Thang

Abstract: This article explains the reasons for the lack of popularity of the term "due process of law" in the Russian current legal system. Nevertheless, all fundamental aspects of this principle included perception, core issues, and requirements that have been shown in a relatively complete and comprehensive way under another name with various levels, forms of expression, and its compliance. By Russia's case study, the author affirms that due process of law is necessary not only in the procedure proceedings that take place before the judicial decisions are made but also in the implementation of decisions and judgments given by courts and other entities. Above all, due process of law would maximize its efficiency when it is nourished in the right ecosystem.


2021 ◽  
Vol 4 (3) ◽  
pp. 8-22

This article examines significant factors that y influenced the formation of the Ukrainian legal system, the structure of the judiciary, in particular, and political development in general. The main focus is the influence of the Orthodox Church. The normative provision of ecclesiastical jurisdiction, which was formed in the first centuries after Christianisation, was reflected in the complex of sources of law. The symbiosis of national and foreign, ecclesiastical and secular regulations, as well as the need to understand Greek sources, gave rise to the need to create their own codification collections called Kormcha Books, which became the main source of law for ecclesiastical practice in Ukraine. The jurisdiction of the Orthodox Church in the Ukrainian territories included the administration of justice in specific categories of cases, which are analysed in detail in this article. Subsequently, the separation of jurisdiction between church and secular authorities formed the basis for the formation of tense state-church relations, which provided each other with political support. The influence of the Orthodoxy on the formation of the judiciary is analysed, as the church institution becomes one of its structural elements, as well as the influence on the legal system because religion is a catalyst for the formation of new legal norms that meet the principles of justice and morality. As a result, the influence of the church on the formation of civil society in modern Ukraine, which should operate on religious and ethical values, becomes obvious. The structure of the church judiciary in Kyivan Rus had a three-tier system, which can be assessed as a prototype for the formation of the later secular system of justice in modern Ukraine. The article also analyses the jurisdiction of the ecclesiastical court in Kyivan Rus, which was clearly defined, enshrined state origin in the sources of ecclesiastical law, and remained unchanged throughout the existence of the state. Additionally, it traces the process of consideration of cases in the ecclesiastical courts of the Kyivan Rus state, which had special features. The first is that in Kyivan Rus, slaves and servants who were not subjects of secular legal relations had the right to take part in the process. It seems probable that the change in approaches to determining the circle of participants in the church-judicial process was due to the need to spread Christian ideas, precepts, and principles to the general public, including servants and slaves. For the Orthodox Church, which promoted its doctrine and came under the rule of polytheism, the priority was to gain recognition and public support, to conduct missionary and educational activities, and to use cultural and educational influence to root its religion and canonical precepts in all parts of the Kyivan Rus state


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