scholarly journals Continuity in Morality and Law

2021 ◽  
Vol 22 (1) ◽  
pp. 45-85
Author(s):  
Re’em Segev
Keyword(s):  
Moral Status ◽  
Gradual Change ◽  
Common View ◽  
Positive Law ◽  
Important Challenge ◽  
The Common ◽  
The Law ◽  
Defensive Action ◽  
Severe Punishment ◽  
The One

Abstract According to an influential and intuitively appealing argument (the Continuity Argument), (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when the action is reasonable (as positive law sometimes does). In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous.

scholarly journals Ending the life of the act/omission dispute: causation in withholding and withdrawing life-sustaining measures

Legal Studies ◽  
2011 ◽  
Vol 31 (3) ◽  
pp. 467-491 ◽  
Author(s):  
Andrew McGee
Keyword(s):  
Decision Making ◽  
Assisted Suicide ◽  
The Other ◽  
Common View ◽  
Legal Position ◽  
The Law ◽  
The One ◽  
End Of Life Decision ◽  
The Relationship ◽  
Life Decision

The aim in this paper is to challenge the increasingly common view in the literature that the law on end-of-life decision making is in disarray and is in need of urgent reform. The argument is that this assessment of the law is based on assumptions about the relationship between the identity of the defendant and their conduct, and about the nature of causation, which, on examination, prove to be indefensible. A clarification of the relationship between causation and omissions is provided which proves that the current legal position does not need modification, at least on the grounds that are commonly advanced for the converse view. This paves the way for a clarification, in conclusion, of important conceptual and moral differences between withholding, refusing and withdrawing life-sustaining measures, on the one hand, and assisted suicide and euthanasia, on the other.

Imperatives of visual versus auditory perception as pragmatic markers in English and Dutch

2010 ◽  
Vol 3 (1) ◽  
pp. 74-94 ◽  
Author(s):  
Daniël Van Olmen
Keyword(s):  
Frequency Distribution ◽  
Auditory Perception ◽  
The Other ◽  
Common View ◽  
Pragmatic Markers ◽  
The Common ◽  
The Difference ◽  
The One

This article examines the English and Dutch imperatives of intentional visual and auditory perception and in particular their use as pragmatic markers. Look, listen, kijk ‘look’ and luister ‘listen’ are compared with respect to frequency, distribution and usage. The difference between look and kijk, on the one hand, and listen and luister, on the other, is argued to be indicative of a more general cross-linguistic tendency. This tendency is explained in terms of the imperatives’ effectiveness in and likely recruitment for what has traditionally been called attention-getting and in terms of the common view of the nature of visual and auditory perception.

The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

2021 ◽  
Vol 2021 (2) ◽  
pp. 272-287
Author(s):  
CJ Visser
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Human Personality ◽  
Positive Law ◽  
Personality Rights ◽  
Recent Approach ◽  
The Common ◽  
The Law ◽  
Composite Nature ◽  
Subjective Rights

This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.

scholarly journals Domestic and international climate policies: complementarity or disparity?

2021 ◽  
Author(s):  
Lauri Peterson
Keyword(s):  
Quantitative Methods ◽  
Common View ◽  
Climate Policies ◽  
Conditional Effect ◽  
International Climate ◽  
The Common ◽  
The One ◽  
The Relationship ◽  
Economic Capacity ◽  
At Home

AbstractClimate change is a global crisis that requires countries to act on both domestic and international levels. This paper examines how climate policies in these two arenas are related and to what extent domestic and international climate ambitions are complementary or disparate. While scholarly work has begun to assess the variation in overall climate policy ambition, only a few studies to date have tried to explain whether internationally ambitious countries are ambitious at home and vice versa. According to the common view, countries that are more ambitious at home can also be expected to be more ambitious abroad. Many scholars, however, portray the relationship instead as disparate, whereby countries need to walk a tightrope between the demands of their domestic constituencies on the one hand and international pressures on the other, while preferring the former over the latter. This study uses quantitative methods and employs data from the OECD DAC dataset on climate finance to measure international climate ambitions. Overall, the present work makes two major contributions. First, it provides evidence that international climate financing ambition is complementary to domestic climate ambition. Second, the article identifies the conditional effect of domestic ambition—with regard to responsibility, vulnerability, carbon-intensive industry and economic capacity—on international climate ambition.

scholarly journals THE ARRANGEMENT OF MODERN RETAIL INDUSTRY IN THE PERSPECTIVE OF POSITIVE LAW IN INDONESIA

2020 ◽  
Vol 9 (2) ◽  
pp. 162-171
Author(s):  
Sandra Megayanti ◽  
Candra Irawan ◽  
Emelia Kontesa
Keyword(s):  
Government Regulation ◽  
Retail Industry ◽  
Traditional Markets ◽  
Trade Law ◽  
Positive Law ◽  
The People ◽  
Unfair Competition Law ◽  
The Law ◽  
The One ◽  
Medium Businesses

Indonesia is a state law that all aspects of life in the areas of society, nationality and state affairs including government affairs should be based on the law in accordance with the national legal system, not least in terms of the economy. Economy is the backbone of public welfare, while the law plays an important role that determines how the prosperity achieved and felt by the people. One of the industries that participate in contributing to the growth and development of the Indonesian economy is the modern retail industry. The existence of the modern retail industry as having two sides of a coin, which on the one hand its existence becomes an important part in the economy, one of them in terms of employment. However, on the other hand, the existence of the modern retail industry raises problems, one of which is the rise of this industry makes the small and medium businesses cannot compete. Nevertheless, the existence of modern retail is currently being faced with adverse situations, where there are a lot of modern retailers who had to close their shops in a number of places, in addition, the proliferation of online businesses also adds problems in the modern retail industry. This study aimed to analyze the arrangement of modern retail industry in the perspective of Indonesian positive law. In this case, researcher used a normative legal research methods with qualitative juridical analysis. In terms of setting, the existence of the modern retail industry has not been able to provide its effectiveness in achieving fairness, certainty and expediency. Currently, the setting of modern retail industry could be seen in some rules, such as Law No. 7 of 2014 About the Trade, Law No. 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Competition, Law No. 25 of 2007 on Investment, President Regulation No. 112 of 2007 on Planning and Development of Traditional Markets, Shopping Centers and Modern Stores, and Government Regulation No. 44 of 1997 concerning the Partnership. However, the implementation of these regulations have not been going well because there is no consistency in the process of administration of justice, both by governments and businessesactors.

How the Law Guides

2020 ◽  
Author(s):  
Joshua Pike
Keyword(s):  
Practical Reasoning ◽  
Common View ◽  
The Common ◽  
The Law

Abstract The concept of guidance lies at the heart of normativity. It follows, according to the common view that the law necessarily claims to be normative, that guidance must play a central role in understanding the law. This article focuses on two questions about guidance: (i) what distinguishes normative guidance from non-normative guidance; and (ii) what is involved in using something as a reason and as a norm so that we are normatively guided by that something. In doing so, two features of how the law guides emerge: first, that despite the involvement of reasons, our relationship with the law is sometimes better characterised as non-normative guidance rather than normative guidance; and second, that it is a conceptual feature of what it is to use a legal directive as a norm that further practical reasoning is required to figure out what action that directive requires, independently of that directive’s vagueness or indeterminacy.

scholarly journals General Partnerships and the Fiduciary Duty in the US Legal System

Pro Futuro ◽  
2021 ◽  
Vol 10 (4) ◽  
Author(s):  
Márta Plásztán-Brehószki
Keyword(s):  
Common Law ◽  
Civil Law ◽  
High Standard ◽  
Company Law ◽  
Fiduciary Duty ◽  
Agency Relationship ◽  
The Us ◽  
The Common ◽  
The Law ◽  
The One

The law of fiduciary duty is as old as common law. It is the key element of the law of equity. The agency relationship creates a fiduciary relationship between the parties, which means that the fiduciary (agent) is subject to the direction of the one on whose behalf he acts (principal). This high standard of conduct – in the scope of the agency relationship – has become a separate liability form in the common law countries and has appeared not only in company law but in other parts of civil law as well. This paper presents the development and the basic elements of fiduciary duty in the field of general partnerships.

scholarly journals Spatial Justice in the Lawscape

2018 ◽  
Vol 5 (1) ◽  
Author(s):  
Andreas Philippopoulos-Mihalopoulos
Keyword(s):  
Social Justice ◽  
Urban Space ◽  
The Other ◽  
Spatial Justice ◽  
Positive Law ◽  
Theoretical Perspectives ◽  
Spatial Parameters ◽  
The Law ◽  
The One ◽  
The City

The connection between law and the city is an increasingly relevant area of transdisciplinary research currently explored from both applied and theoretical perspectives. Existing approaches, however, have not adequately focussed on the fusion between the law and the space of a city, the geographical physicality of the urban in its material ontology on the one hand, and the operations of the law within such materiality on the other. This chapter builds on my previous work on the concept of the Lawscape, which has shown that law’s reluctance of the law to grapple with urban space may well be on account of the counter-intuitiveness of the connection: positive law greatly relies on its immateriality, its objective, abstract application independently of spatial parameters. I argue here that the lawscape is the surface on which the concept of spatial justice emerges as a true interstice. The problem with spatial justice, however, is that it is woefully undertheorised and usually equated with rather innocuous constructions such as social justice and democracy. Employing a Deleuzian approach, I offer a conceptualisation of spatial justice not as synthesis but as emergence from the folds of the lawscape.

scholarly journals Efektifitas Pemberian Dispensasi Kawin Pada Anak Di Bawah Umur Menurut Undang-undang No.1 Tahun 1974 (Studi Kasus Di Kab. Polewali Mandar)

2019 ◽  
Vol 15 (1) ◽  
pp. 73
Author(s):  
Ade Rahayu
Keyword(s):  
Research Method ◽  
Legal Research ◽  
Positive Law ◽  
Age Limit ◽  
The Law ◽  
Family Based ◽  
The One ◽  
Husband And Wife

Marriage dispensation is the relief of something (age limit) in bonding between a man and a woman as husband and wife with the aim of forming a happy and eternal family based on the One Godhead. The purpose of this study was to determine and analyze the effectiveness of Marriage Dispensation in Underage Children in Polewali Mandar Regency and the factors that influence the judge's decision to grant the request for mating dispensation in minors in Polewali Mandar district. The research method used is empirical legal research. The results showed that underage marriage in Polewali Mandar district had not been implemented effectively because underage marriage was still found without going through mating dispensation and the factors that influenced the judge's decision to grant the request were because the prospective bride had been pregnant out of wedlock. Because the judge is not bound by positive law so the judge is given the opportunity to find the law. The judge prioritizes the concept of maslahah mursalah, where the judge chooses consideration of goodness and rejects damage in society and prevents harm.

scholarly journals THE COMPARATIVE LEGAL HISTORY OF LIMITATION AND PRESCRIPTION

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eltjo Schrage
Keyword(s):  
Legal History ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Legal Systems ◽  
Oliver Wendell Holmes ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The One

Within both the civil law and the common law (as well as in mixed legal systems), there are means of acquiring and losing rights, or of freeing ourselves from obligations with the passage of time. The reason for this is at least twofold: on the one hand, for a claimant, a dispossessed owner or a creditor, limitation and prescription provide stimuli for bringing the action; on the other, this sanction upon the negligence of the claimant implies in many cases a windfall for the defendant. If a creditor is negligent in protecting his assets, the law at a certain stage no longer protects him or her. As Oliver Wendell Holmes, Jr. said aptly some 100 years ago: “Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”.

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