Multiple historical and social layers of interpretation of marital rape in England

Semiotica ◽  
2016 ◽  
Vol 2016 (209) ◽  
pp. 43-57 ◽  
Author(s):  
Anne Wagner
Keyword(s):  
Legal Reasoning ◽  
Legal Knowledge ◽  
Marital Rape ◽  
Traditional Concept ◽  
Historical Awareness ◽  
Objective Rationality ◽  
Marital Abuse ◽  
The Way

AbstractThis paper sets out to examine the way in which legal reasoning constructed marital rape and eventually officially recognized it after centuries of men’s ascendency over women. Understanding the multiple layers requires cultural and historical awareness of the traditional concept of “marriage” and the practice of religion as well as the very different conditions in which marital rape was envisaged. The main contention of this paper is to show that legal knowledge derives from a patriarchal tradition where the processing of marital abuse and rape hovered between cultural and subjective realities contrary to objective rationality.

scholarly journals How Reflective and Critical Norm-Usage Paves the Way to the Public Power of Judgement

2019 ◽  
Vol 33 (1) ◽  
pp. 175-188
Author(s):  
Karolina M. Cern
Keyword(s):  
Legal Reasoning ◽  
Public Power ◽  
The Public ◽  
Democratic Polity ◽  
Power Needs ◽  
The Way

Abstract The purpose of this paper is to demonstrate that Neil MacCormick’s conception of norm-usage makes it necessary to address the concept of the public power of judgement as the key concept for understanding the democratic legitimization of current law. Therefore, firstly I analyse MacCormick’s conception of norm-usage, secondly I demonstrate that it leads to the idea of the institutionalisation of judgemental–interpretative practice, and thirdly, I show that the latter paves the way to the public power of judgement. Finally, I argue that this power needs to be elaborated in terms of competencies which are broader than legal skills and legal reasoning, and, further, that these competencies condition the use of both legal skills and reasoning. Importantly, MacCormick’s contribution to understanding the public power of judgement—when further developed—may indicate the profound role of comprehending the proper significance of law in a democratic polity and its relationship to the citizenry.

scholarly journals Design-based research on the way to mainstream research? Comments on the plea for phronesis by Bardone and Bauters

2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Gabi Reinmann
Keyword(s):  
The Other ◽  
Traditional Concept ◽  
Design Based Research ◽  
Other Hand ◽  
Pedagogical Tact ◽  
Discussion Article ◽  
The One ◽  
The Way

Bardone and Bauters suggest a re-conceptualization of design-based research using the classical term "phronesis" and question some methodological developments referring to the role of intervention and theory in design-based research. This discussion article is a comment on the text of Bardone and Bauters and pursues two aims: On the one hand the term “phronesis” is connected to the traditional concept of “pädagogischer Takt” (literally: “pedagogical tact”) to stimulate a joint discourse of both traditions. On the other hand, two main suggestions of Bardone und Bauters are critically examined, namely their proposal to conceptualize intervention in design-based research exclusively as an action, and their call for deriving generalizations via experiences instead of theories. The discussion article finally argues for maintaining the integrative power of design-based research by avoiding one-sided interpretations.  

Fiduciary Law as Equity’s Child

Equity ◽  
2018 ◽  
pp. 113-151
Author(s):  
Irit Samet
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Active Role ◽  
Fiduciary Duties ◽  
Contractual Obligation ◽  
The Law ◽  
Duty Of Loyalty ◽  
Contractual Obligations ◽  
The Relationship ◽  
The Way

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

2. Negligence: duty of care

2020 ◽  
pp. 23-58
Author(s):  
Carol Brennan ◽  
Vera Bermingham
Keyword(s):  
Duty Of Care ◽  
Physical Injury ◽  
Legal Knowledge ◽  
Property Damage ◽  
Key Points ◽  
History Of ◽  
The Way ◽  
Public Bodies

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Negligence is a tort in its own right and involves an unintentional wrong as opposed to trespass which involves an intentional wrong. It has three main elements: duty of care (whether the defendant owes the claimant a duty of care), breach (whether the defendant has breached that duty), and damage (whether that breach has caused damage of a legally recognized kind to the claimant). Duty of care is determined by proximity, foreseeability, and policy and is most likely to be established in cases of positive acts which cause physical injury or property damage. This chapter provides an overview of the history of negligence and discusses the function of duty of care in negligence. It also considers the way duty of care has been defined and developed and applies the principles of duty of care in the areas of omissions and liability of public bodies.

An Approach to Legal Principles Based on Their Justifying Function

2019 ◽  
Vol 32 (02) ◽  
pp. 321-342 ◽  
Author(s):  
Juan B. Etcheverry
Keyword(s):  
Legal Reasoning ◽  
Legal Principles ◽  
Structural Differences ◽  
Different Types ◽  
The Way

AbstractThis paper intends to throw light upon some aspects of the debate on the characterization of legal principles and on their differences when compared to rules. Particularly, this analysis proposes differentiating principles from rules by considering the functions they perform in law instead of their structural differences. To achieve this, we distinguish between the functions of guidance and justification that legal principles fulfill. From that distinction, we observe that the attempt to characterize legal principles based on the way in which they guide conduct does not seem to be the most appropriate either. In contrast, this paper tries to show that all the different types of precepts known as principles perform a justifying function in legal reasoning.

7. Ancillary rights

2021 ◽  
pp. 149-164
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
The Political ◽  
Legal Knowledge ◽  
Political Activities ◽  
National Courts ◽  
Key Points ◽  
Self Test ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses Convention rights that are considered ancillary by virtue of the fact that they do not in themselves establish any substantive human rights but are relevant to the way the substantive rights are put into effect. Specifically, the chapter discusses Article 14, which prohibits discrimination in the way Convention rights and freedoms are secured; Article 15, which allows states to derogate from their responsibilities under certain circumstances; Article 16, which allows states to restrict the political activities of aliens; Article 17, which authorises the ECtHR and national courts to refuse to uphold the rights of those who would use them to undermine the rights of others; and Article 18, which insists that rights and freedoms in the Convention can be restricted and qualified.

"Legal Expert" Project

1997 ◽  
Vol 1 (2) ◽  
pp. 83-85 ◽  
Author(s):  
Hajime Yoshino ◽  
Keyword(s):  
Expert System ◽  
Expert Systems ◽  
Legal Reasoning ◽  
Knowledge Structure ◽  
Legal Knowledge ◽  
Computer Scientists ◽  
Legal Expert ◽  
Legal Expert Systems

Since 1992, about 30 Japanese lawyers and computer scientists have been intensively engaged in a project of systematizing and computerizing legal reasoning. This project is the Study of Development of a Legal Expert System - Exploration of Legal Knowledge Structure and Implementation of Legal Reasoning or, in short, the "Legal Expert" Project. In this paper, I would like to introduce the Legal Expert project, explaining the goals, study organizations and their tasks in constructing legal expert systems in Japan.

scholarly journals Main characteristics of credit life insurance

2020 ◽  
Vol 58 (3) ◽  
pp. 237-253
Author(s):  
Mirjana Glintić
Keyword(s):  
Cost Effectiveness ◽  
Life Insurance ◽  
Insurance Coverage ◽  
Legal Knowledge ◽  
Insurance Agents ◽  
Insurance Contracts ◽  
Insurance Policies ◽  
Credit Insurance ◽  
The Way

In recent years, banks in Serbia, as authorized insurance agents, have started offering various types of insurance contracts that serve as a means of securing credit. Since the potential credit user is a consumer who does not have sufficient legal knowledge of insurance contracts, this paper aims to point out the main characteristics of these insurances and to highlight the differences between them. Despite all the information that insurance agents are required to disclose to their clients, there are always certain dilemmas regarding these insurance policies, particularly with respect to the issues of insurance coverage, insurance voluntariness and its cost-effectiveness. During the last two years, several judgments have been made regarding credit insurance and the powers of banks in connection with this contract, so it was necessary to consider what consequences this could have on the way of concluding the contract and calculating premiums for some other insurances intended for securing loans, although differently conceived.

Special Issue on AI and Law

1997 ◽  
Vol 1 (2) ◽  
pp. 81-82
Author(s):  
Hajime Yoshino ◽  
Katsumi Nitta
Keyword(s):  
Expert Systems ◽  
Logic Programming ◽  
Legal Reasoning ◽  
Case Based Reasoning ◽  
Legal Knowledge ◽  
Abductive Logic ◽  
Abductive Logic Programming ◽  
Legal Expert ◽  
Legal Expert Systems ◽  
Case Based

Lawyers use a reasoning process known as legal reasoning to solve legal problems. Legal expert systems could potentially help lawyers solve legal problems more quick and adequately, enable students to study law at school or at home more easily, and help legal scholars and professionals analyze the law and legal systems more clearly and precisely.In 1992, Hajime Yoshino of Meiji Gakuin University started a “Legal Expert Systems” project. This “Legal Expert” project is funded by the Japanese Ministry of Education, Science and Culture and is scheduled to run from May 1992 to March 1998. Yoshino organized over 30 lawyers and computer scientists to clarify legal knowledge and develop legal expert systems.This project covers a wide range of technologies such as the analysis of legal knowledge, the analysis of legal rules on international trade (United Nations Convention on Contracts for International Sale of Goods (CISG)), legal knowledge representation, legal inference models, utility programs to develop legal knowledge bases, and user interfaces. This project, which ends in March 1998, will focus on developing comprehensive legal expert systems as the final product. In this issue, we present 12 papers written by “Legal Expert” project members.In this number, Hajime Yoshino gives are overview of the legal expert systems project, explaining its aims, objectives, and organization. Six papers that follow his introduction include three on case-based reasoning. Legal rules are given by ambiguous predicates, making it difficult sometimes to determine whether conditions for rules are satisfied by the facts given of an event. In such cases, lawyers often refer to old cases and generate hypotheses through analogical reasoning.Kaoru Hirota, Hajime Yoshino and Ming Qiang Xu apply fuzzy theory to case-based reasoning. A number of related systems have been developed, but most focus on qualitative similarities between old cases and the current case, and cannot measure quantitative similarities. Hirota et al. treat quantitative similarity by applying fuzzy theory, explaining their method using CISG examples.Ken Satoh developed a way to compute an interpretation of undefined propositions in a legal rule using adversarial case-based reasoning. He translated old cases giving possible interpretations for a proposition into clauses in abductive logic programming and introduced abducibles to reason dynamically about important factors in an old case to the interpretation suiting the user’s purpose.Yoshiaki Okubo and Makoto Haraguchi formalized a way of attacking legal argument. Assume that an opponent has constructed a legal argument by applying a statute with an analogical interpretation. From the viewpoint of legal stability, the same statue for similar cases should be applied with the same interpretation. We thereby create a hypothetical case similar to the case in question and examine whether the statue can be interpreted analogically. Such a hypothetically similar case is created with the help of a goal-dependent abstraction framework. If a precedent in which a statue has been applied to a case with a different interpretation – particularly complete interpretation – can be found, the opponent’s argument is attacked by pointing out the incoherence of its interpretation of the statue.Takashi Kanai and Susumu Kunifuji proposed a legal reasoning system using abductive logic programming that deals with ambiguities in described facts and exceptions not described in articles. They examined the problems to be solved to develop legal knowledge bases through abductive logic programming, e.g., how to select ambiguities to be treated in abductive reasoning, how to describe time relationships, and how to describe an exception in terms of the application of abductive logic programming to legal reasoning.Toshiko Wakaki, Ken Satoh, and Katsumi Nitta presented an approach of reasoning about dynamic preferences in the framework of circumscription based on logic programming. To treat dynamic preferences correctly is required in legal reasoning to handle metarules such as lex posterior. This has become a hotly discussed topic in legal reasoning and more general nonmonotic reasoning. Comparisons of their method, Brewka’s approach, and Prakken and Sartor’s approach are discussed.Hiroyuki Matsumoto proposed a general legal reasoning model and a way of describing legal knowledge systematically. He applied his method to Japanese Maritime Traffic Law.Six more papers are to be presented in the next number

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

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