Legal reasoning: a textual perspective on common law judicial opinions and Chinese judgments

2021 ◽  
Vol 41 (1) ◽  
pp. 71-93
Author(s):  
Nan Lu ◽  
Chuanyou Yuan
Keyword(s):  
Conceptual Framework ◽  
Systemic Functional Linguistics ◽  
Common Law ◽  
Legal Reasoning ◽  
Frame Of Reference ◽  
Judicial Reform ◽  
Generic Structure ◽  
Chinese Case ◽  
Judicial Opinions ◽  
British Case

Abstract The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.

scholarly journals A Conceptual Framework for the New Zealand Tort of Intrusion

2016 ◽  
Vol 47 (2) ◽  
pp. 283 ◽  
Author(s):  
Nicole A Moreham
Keyword(s):  
New Zealand ◽  
Conceptual Framework ◽  
Common Law ◽  
Starting Point

This article examines the desirable scope of the New Zealand tort of intrusion into seclusion. It begins by developing a six-part taxonomy of common law privacy interests and then, using that taxonomy as its starting point, asks which privacy interests the New Zealand intrusion tort should cover. It argues that although the intrusion tort is a very welcome addition to New Zealand common law, it is important that its parameters are clearly delineated. The best way to achieve that, it is suggested, is by recognising that unwarranted listening, watching or recording of private activities is the gravamen of the new tort. 

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.

Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability

2013 ◽  
pp. 1-19
Author(s):  
Mary Garvey Algero
Keyword(s):  
United States ◽  
New York ◽  
Common Law ◽  
New York State ◽  
Civil Law ◽  
The United States ◽  
Stare Decisis ◽  
The Common ◽  
Judicial Opinions ◽  
The Right

Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts’ writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts’ approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author’s prior writings on the subject.

scholarly journals Occupier's Liability: Alberta Proposes Reform

1969 ◽  
pp. 89
Author(s):  
E. R. Alexander
Keyword(s):  
Common Law ◽  
Point Of View ◽  
Social Needs ◽  
Duty Of Care ◽  
Judicial Reform ◽  
Stare Decisis ◽  
Convincing Argument ◽  
South Wales ◽  
The Common ◽  
The Law

In view of proposed reform of the law of occupiers' liability in Alberta, the common law approach to this area of law is examined by way of introduction. Professor Alexander adumbrates the categories of visitors and the duty of care owed to each, within the framework of the modern tort tendency to generalize. An examination in some detail is also made of the judicial techniques used in recent years to evolve the law of occupier's liability. As reform results from criticism, an examination of the criticisms of the present law, specifically judicial interpretation of the categories, as well as the categories themselves, their origin, com pass and applicability to vwdern society, are undertaken. Based on the criticisms, law reform has occurred. From the point of view of evaluating whether the reform has answered the criticisms of the common Iaio approach, the author attempts to examine the actual and proposed re form of England, Scotland, New Zealand, New South Wales, and Alberta. Particular detail is addressed to the Alberta proposals regarding com mon duty of care, the trespasser, the child trespasser and the ability to exclude liability. Concluding that convincing argument can be ad vanced for judicial reform in the area of private law, and that stare decisis does not have justification in the law of tort, Professor Alexander proposes that, while reform can be valuable as method of evolution, judicial history evidences that the Courts are able to adapt the law to meet changing social needs. The author concludes also that the common law today is preferable to the proposed Alberta reform.

scholarly journals Nieważność czynności prawnej z perspektywy systemów prawnych common law

2018 ◽  
pp. 7-88
Author(s):  
Piotr Skorupa
Keyword(s):  
Common Law ◽  
Frame Of Reference ◽  
Common Frame Of Reference

Artykuł opisuje złożoną problematykę nieważności czynności prawnej w jurysdykcjach common law. W ramach oceny najnowszych tendencji dotyczącej proporcjonalnego i nowoczesnego modelu normatywnego sankcji nieważności bezwzględnej szczególną uwagę zwraca się na ustawową sankcję sędziowską ( structured discretion ) zaproponowaną w związku z reformą instytucji illegality i immorality w prawie umów (i innych czynności prawnych). Wpływ propozycji sankcji sędziowskiej na prawo polskie został ukazany na tle prac nad reformą sankcji illegality w niektórych krajach common law. Prace te wraz z bardzo cennymi materiałami zgromadzonymi w trakcie konsultacji miały także wpływ na kształt sankcji i jej proporcjonalizacji podczas opracowywania Common Frame of Reference. Przeanalizowano m. in. konieczne do poczynienia postępu w tej dziedzinie odejście od naturalistycznego postrzegania sankcji nieważności bezwzględnej w prawie prywatnym i rezygnacji z dogmatów wypracowanych jeszcze w czasach tzw. wielkich kodyfikacji XIX w. Dorobek nauki prawa i judykatury common law pokazuje jednoznacznie, że lakoniczna terminologia w normatywnych modelach sankcji nieważności bezwzględnej w kręgu ius civile wywarła negatywny wpływ na skuteczność i efektywność prawa.

scholarly journals UNDERSTANDING AND EVALUATING PERSONAL LETTER WRITING: A SYSTEMIC FUNCTIONAL LINGUISTICS ANALYSIS OF STUDENT TEXTS IN ONE OF SENIOR HIGH SCHOOL IN INDONESIA

2020 ◽  
Vol 6 (2) ◽  
pp. 165
Author(s):  
Alfira Veronica Mangana ◽  
Eri Kurniawan
Keyword(s):  
High School ◽  
Learning Strategy ◽  
Systemic Functional Linguistics ◽  
Senior High School ◽  
School Level ◽  
High School Level ◽  
Generic Structure ◽  
Functional Linguistics ◽  
Personal Letter ◽  
Grammatical Errors

Based on 2013 Curriculum, Personal Letter can be considered as one of the challenging text types that should be mastered by the students. This might be the reason why the text is taught in Senior High School Level. Therefore, it is crucial for the teachers to expand their knowledge regarding this type of genre to overcome students� problems faced during writing personal letter. This study is aimed to analyse student�s Personal Letter text based on three metafunctions in SFL perspective. It is expected that by identifying students� problems, teachers can decide and design appropriate pedagogical plan. The data of this descriptive qualitative study were analysed by using three metafunctions in Systemic Functional Linguistics (SFL). The result of the study reveals that the student�s major problems in producing Personal Letter text are the use of subject and verb tense (interpersonal metafunctions), the generic structure of the text, the use of conjunctions, the grammatical errors, and L1 interference.Keywords: personal letter; systemic functional linguistics; metafunction; discovery learning strategy.

scholarly journals Students’ Writing Quality: Its Coherence and Cohesion

2019 ◽  
Vol 14 (1) ◽  
pp. 121-129
Author(s):  
Alief Noor Farida ◽  
Mohamad Ikhwan Rosyidi
Keyword(s):  
Education Research ◽  
Systemic Functional Linguistics ◽  
Writing Quality ◽  
Generic Structure ◽  
Functional Linguistics

Students’ writing quality has become the focus of education research nowadays. A good quality writing should fulfil the requirements of coherence and cohesion. Coherence shows how the sentences in the text are arranged which usually follow certain structure, and cohesion shows how they are connected to each other. This study aims to investigate the students’ writing quality in both aspects. Using systemic functional linguistics approach, 10 students’ writing on recount text is analysed. The result of the study reveals how good the students on the fourth semester can write the text and what devices they use to establish the quality. The students can follow the generic structure of recount texts well. However, only 50% has reorientation. In addition, they employ different thematic progressions,

scholarly journals Brief Investigatory Detentions: A Critique of R. v. Simpson

1969 ◽  
pp. 935 ◽  
Author(s):  
Tim Quigley
Keyword(s):  
Ethnic Identity ◽  
Minority Groups ◽  
Common Law ◽  
Case Law ◽  
Real Possibility ◽  
American Experience ◽  
Police Powers ◽  
The Common ◽  
British Case ◽  
Court Of Appeal

In this article, the author examines the brief investigative detention power created by the Ontario Court of Appeal in R. v. Simpson and challenges both the Court's reasoning and the way in which the decision has been followed in other Canadian jurisdictions. The common law power to detain an individual, based upon prominent U.S. and British case law, is inconsistent with the previous Supreme Court jurisprudence on police powers. The author demonstrates this by analyzing several cases involving police powers and joins the list of commentators who have urged the country's highest court to re-examine the Simpson doctrine. The author also argues that there has been a tendency for U.S. courts to grant increased discretion to the police even when such powers are unwarranted. There is a real possibility of a similar accretion of police powers in Canada. Moreover, the American experience also indicates that members of minority groups are frequently subjected to the rigours of brief investigative detention, often only because of their ethnic identity. Recent studies show that the same trend exists in Canada, serving to challenge democratic and egalitarian values that the Charter is designed to protect. The solution, according to the author, lies not with the Courts, but with Parliament taking the opportunity to define the extent and limits of brief investigative detentions.

scholarly journals Dimensions of precedent: a methodology to understand the doctrine of precedent

Perspectivas ◽  
2020 ◽  
Vol 11 (1) ◽  
pp. 75-107
Author(s):  
Florencia S. Ratti Mendaña ◽  
Keyword(s):  
Comparative Analysis ◽  
Conceptual Framework ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Adequate Understanding

This article evidences multiple ways in which judicial precedent is used in different legal systems. It shows that: a) precedent is currently used, one way or another, in every legal system but its use differs in each legal system and frequently it is used differently even between courts of the same legal system; b) a comparative analysis under the methodology hereby proposed would provide useful tools in order to address how to “treat like cases alike”. The main aim of this research is to set the conceptual framework for an adequate understanding and study of the doctrine of precedent. To do this, some dimensions of the doctrine of precedent will be added to those enumerated by Michele Taruffo and analyzed not only theoretically, but also under concrete examples of how they work in different legal systems —both of common law and civil law.

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