scholarly journals If “Everyone Does It,” Then You Can Too

2018 ◽  
Vol 9 (1) ◽  
pp. 27-31
Author(s):  
Charlie Melman
Keyword(s):  
Moral Sense ◽  
Legal Realism ◽  
Legal Context ◽  
The Law ◽  
Definition Of ◽  
Legal Sense ◽  
Orthodox View

I argue that the “But Everyone Does That” (BEDT) defense can have significant exculpatory force in a legal sense, but not a moral sense. I consider whether legal realism is a better theory of the law than the more orthodox view of respecting the law as it is written. I next examine what the purpose of the law is, especially attending to how widespread disobedience is treated. Finally, I attempt to fit BEDT within Paul Robinson’s framework for categorizing defenses. I conclude that, first, BEDT can have significant exculpatory force; second, a BEDT plea does not comport with either Robinson’s definition of an excuse or other commonly held conceptions and so needs its own classification; and finally, BEDT does not exonerate the offender in a moral sense—only in a legal context.

Magic and Property: The Legal Context of Apuleius' Apologia

Antichthon ◽  
2011 ◽  
Vol 45 ◽  
pp. 149-166 ◽  
Author(s):  
Tristan Taylor
Keyword(s):  
Legal Rules ◽  
Legal Situation ◽  
Legal Context ◽  
The Law ◽  
Legal Sense

AbstractThis paper examines Apuleius' Apologia from the perspective of its legal context. The paper asks three questions: first, what was the legal situation in relation to the property issues central to the motivations of Apuleius' accusers? Second, what would the legal effects of a conviction have been on these property concerns? And, finally, what light do our answers to these questions shed on the Apologia itself? The applicable legal rules suggest both that some of the concerns of the prosecutors were ill-founded and that the prosecution would have achieved little in a legal sense in terms advancing their alleged ends. These observations suggest several potential conclusions: first, that Apuleius' accusers sincerely believed their accusation of magic and thought that it was only the magical skill of Apuleius that threatened their aspirations to Pudentilla's estate. Conversely, it may be that the accusers were simply ignorant about the law, vindictive towards Apuleius, or both. Third, that Apuleius has misrepresented his accusers' motivations. Finally, these conclusions on matters of law could even be taken to suggest that the speech does not represent a genuine case, but rather is a work of fiction concocted by Apuleius for literary purposes.

scholarly journals Realisme Hukum: Peradilan Adat dalam Perspektif Keadilan Sosial

2021 ◽  
Vol 1 (2) ◽  
pp. 285
Author(s):  
Dominikus Rato
Keyword(s):  
Empirical Studies ◽  
Law Enforcement Officers ◽  
Customary Law ◽  
Legal Anthropology ◽  
Law Schools ◽  
Legal Realism ◽  
Legal Method ◽  
Legal Context ◽  
Points Of View ◽  
The Law

Aspects of positivism with its normative approach are often taught in various law schools as a single perspective. The study of law can be based on legal realism. Nevertheless, there is still a debate about legal realism's working pattern and contribution to juridical science. This study that introduced legal realism worked with socio-legal method based on the literature review. It aimed to elaborate on the concept of legal-realism as an epistemology of the socio-legal school, which leads to the conception of customary law and legal anthropology. With a naturalistic approach and supported by theories of customary law and legal anthropology. This study showed that legal realism as a school in philosophy and juridical studies based on empirical studies need to be developed. It referred to legal realism conceptualized in Scandinavia and America that was suitable to Indonesia's legal context, especially customary law as the law that lives in society. Therefore, the law that lives in society is strengthened through verdict and law enforcement officers as symbols of the state. It suggested that legal realism is also taught in law schools at universities, so that legal academics have diverse points of view, both in the legal discipline and as a research method. KEYWORDS: Customary Law, Socio-Legal, Social Justice, Legal Realism.

scholarly journals ANALISIS PASAL 284 KUHP TENTANG TINDAK PIDANA ZINA

2008 ◽  
Vol 8 (3) ◽  
pp. 299
Author(s):  
M. Aunul Hakim
Keyword(s):  
Sexual Intercourse ◽  
Islamic Law ◽  
Criminal Code ◽  
Legal Realism ◽  
The Social ◽  
The Law ◽  
Definition Of ◽  
Islamic Values

<p class="Bodytext60">Indonesia is a state with a Criminal Code named KUHP. The regulation draft about adultery is especially mentioned at paragraph 284. According to this paragraph, the definition of adultery is sexual intercourse conducted by a man/woman who has valid marriage with another woman/man who is not his/her wife/husband and it is conducted based on the wish of each of them. In Criminal Code, it is stated that such deed may be imposed as a crime if there is a plea from the wife/husband who is harmed. Adultery crime is called as offense that warrants complaint, and punishment is nine months. It is different from the meaning of adultery according to Islamic Law which has meaning a sexual intercourse conducted by a man and woman who are not a valid pair of marriage. Besides, the criminal code was established based on rationale consideration. While the objective of legal realism is to construct the law which is more responsive toward the social need. Therefore KUHP regulation on adultery should be revisited to accomodate the Islamic values held by moslem as the dominant citizen in Indonesia.    </p><p class="Bodytext60"> </p><p class="Bodytext60">Indonesia adalah negara dengan KUHP yang bernama KUHP. Rancangan peraturan tentang perzinahan terutama disebutkan pada paragraf 284. Menurut paragraf ini, definisi perzinahan adalah hubungan seksual yang dilakukan oleh seorang pria / wanita yang memiliki pernikahan yang sah dengan wanita / pria lain yang bukan isteri / suami dan istrinya. dilakukan berdasarkan keinginan masing-masing. Dalam KUHP, dinyatakan bahwa akta tersebut dapat dikenakan sebagai tindak pidana jika ada permintaan dari istri / suami yang dirugikan. Kejahatan perzinahan disebut sebagai pelanggaran yang menjamin pengaduan, dan hukuman sembilan bulan. Hal ini berbeda dengan makna perzinahan menurut Hukum Islam yang memiliki arti hubungan seksual yang dilakukan oleh pria dan wanita yang bukan pasangan perkawinan yang sah. Selain itu, kode pidana didirikan berdasarkan pertimbangan rasional. Sedangkan tujuan realisme hukum adalah membangun undang-undang yang lebih responsif terhadap kebutuhan sosial. Oleh karena itu peraturan KUHP tentang perzinahan harus ditinjau kembali untuk mengakomodasi nilai-nilai Islam yang dimiliki umat Islam sebagai warga negara yang dominan di Indonesia.</p>

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

scholarly journals What is a firm? A reply to Jean-Philippe Robé

2021 ◽  
pp. 1-11
Author(s):  
Simon Deakin ◽  
David Gindis ◽  
Geoffrey M. Hodgson
Keyword(s):  
Theory Of The Firm ◽  
Recent Book ◽  
Everyday Language ◽  
Modern Capitalism ◽  
Legal Foundations ◽  
Common Parlance ◽  
The Law ◽  
Business Entities ◽  
Definition Of ◽  
The Way

Abstract In his recent book on Property, Power and Politics, Jean-Philippe Robé makes a strong case for the need to understand the legal foundations of modern capitalism. He also insists that it is important to distinguish between firms and corporations. We agree. But Robé criticizes our definition of firms in terms of legally recognized capacities on the grounds that it does not take the distinction seriously enough. He argues that firms are not legally recognized as such, as the law only knows corporations. This argument, which is capable of different interpretations, leads to the bizarre result that corporations are not firms. Using etymological and other evidence, we show that firms are treated as legally constituted business entities in both common parlance and legal discourse. The way the law defines firms and corporations, while the product of a discourse which is in many ways distinct from everyday language, has such profound implications for the way firms operate in practice that no institutional theory of the firm worthy of the name can afford to ignore it.

Consent after the House of Lords: Taking and leading astray the Law of Theft

Legal Studies ◽  
1993 ◽  
Vol 13 (3) ◽  
pp. 308-322
Author(s):  
Mitchell C. Davies
Keyword(s):  
Criminal Law ◽  
House Of Lords ◽  
The Law ◽  
Definition Of ◽  
Specific Definition

The objectives of the Criminal Law Revision Committee when drafting the radical reforms proposed by the 1966 Theft Bill were described by a contemporary commentator2 as being: ‘. . . to do away with the more embarrassing and restrictive technicalities of the existing law . . .’In the same place it was observed that the Committee faced a choice between creating a specific definition of the various theft offences and their elements, or one whose generality would allow it to evolve to meet the challenges presented by ever more complex and sophisticated dishonest dealing.

Correction to a definition of negation

1984 ◽  
Vol 49 (1) ◽  
pp. 47-50 ◽  
Author(s):  
Frederic B. Fitch
Keyword(s):  
Fixed Point ◽  
Personal Communication ◽  
The Other ◽  
Transfinite Induction ◽  
Original Form ◽  
Basic Logic ◽  
Double Negation ◽  
Original Letter ◽  
The Law ◽  
Definition Of

In [3] a definition of negation was presented for the system K′ of extended basic logic [1], but it has since been shown by Peter Päppinghaus (personal communication) that this definition fails to give rise to the law of double negation as I claimed it did. The purpose of this note is to revise this defective definition in such a way that it clearly does give rise to the law of double negation, as well as to the other negation rules of K′.Although Päppinghaus's original letter to me was dated September 19, 1972, the matter has remained unresolved all this time. Only recently have I seen that there is a simple way to correct the definition. I am of course very grateful to Päppinghaus for pointing out my error in claiming to be able to derive the rule of double negation from the original form of the definition.The corrected definition will, as before, use fixed-point operators to give the effect of the required kind of transfinite induction, but this time a double transfinite induction will be used, somewhat like the double transfinite induction used in [5] to define simultaneously the theorems and antitheorems of system CΓ.

Zur Frage der doktrinellen Auslegung des Artikels 61 Pkt. 3 der Verfassung der Republik Kasachstan

2021 ◽  
Vol 67 (2) ◽  
pp. 133-144
Author(s):  
Ermek B. Abdrasulov
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legal Norms ◽  
The Law ◽  
The Republic ◽  
Definition Of ◽  
The Relationship ◽  
National Business

This article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts "the most important public relations", "all other relations", "subsidiary legislation", as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of p. 4 of Article 61 of the Constitution in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate "unimportant" public relations. The law is essentially aimed at regulating all important social relations.

scholarly journals Criminal Liability and Crime and Punishment Proportionality in the Crime of Legal Entities

2016 ◽  
Vol 9 (6) ◽  
pp. 61
Author(s):  
Samira Soltani ◽  
Ahmad Ramazani
Keyword(s):  
Criminal Liability ◽  
Penal Code ◽  
Legal Person ◽  
The Public ◽  
Crime And Punishment ◽  
Economic Exclusion ◽  
The Law ◽  
Definition Of ◽  
Legal Entities ◽  
The Way

One of the innovations of Islamic Penal Code in 2013 was to accept criminal liability of legal entities. By accepting criminal liability of legal entities, the way to punish them is arisen. As a legal person cannot commit any crime, any punishments are not applicable to them. Accordingly, Article 20 of this Law enumerated a list of penalties applicable to legal persons and it was tried to use penalties in accordance with the legal entities to deal with them. Punishments such as dissolution, confiscation, cash fine, announcement of the judgment, Diyeh, social and economic exclusion; such as a ban on business activities, prohibition of the public invitation to raise capital and ban from drawing business documents listed in Article 20 and Article 14, are a set of punishments which relatively different from usual punishment for individuals. These penalties are relative diversity, but what is objectionable is that the details and conditions of implementation of each of these punishments are not clear. If legislator described the details exactly or provided the condition to require the adoption of The Executive Bylaw of the punishment, it would be better. Given that all the points and issues about penalties for legal persons are not stated in this law as well as ambiguities in the law for a comprehensive definition of legal person, the way to implement main and supplementary punishments, In this study it was tried to evaluate and criticize the legal entities penalties including main and supplementary ones and their grading.

scholarly journals The redirection of attacks by defending forces

2021 ◽  
pp. 1-18
Author(s):  
Tsvetelina van Benthem
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Prima Facie ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Definition Of ◽  
The Relationship

Abstract This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.

Sign in / Sign up

Export Citation Format

Share Document