scholarly journals Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent

2019 ◽  
Vol 9 (9(5)) ◽  
pp. 577-595
Author(s):  
Emily Kidd White
Keyword(s):  
Freedom Of Expression ◽  
Common Law ◽  
Legal Reasoning ◽  
Constitutional Rights ◽  
Freedom Of Association ◽  
Legislative History ◽  
The Past ◽  
The Common ◽  
Judicial Reasoning ◽  
Constitutional Right

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.

scholarly journals Replaying the Past: Roles for Emotion in Judicial Invocations of Legislative History, and Precedent

2019 ◽  
Vol 9 (9(5)) ◽  
pp. 577-595
Author(s):  
Emily Kidd White
Keyword(s):  
Freedom Of Expression ◽  
Common Law ◽  
Legal Reasoning ◽  
Constitutional Rights ◽  
Freedom Of Association ◽  
Legislative History ◽  
The Past ◽  
The Common ◽  
Judicial Reasoning ◽  
Constitutional Right

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and rights abuses (however ill or well-defined), work to conjure up a set of service emotions (emotions which work to establish a particular frame of mind), which guide judicial applications of doctrine in cases concerning an alleged violation of a constitutional right. El razonamiento jurídico en la tradición de derecho consuetudinario exige que los jueces partan de conceptos y de ejemplos que se supone se hacen eco de un significado emocional concreto y que, en el razonamiento judicial, operan como si de hecho así fuera. La aplicación judicial de derechos constitucionales se interpreta generalmente por medio de referencias a delitos anteriores (a través de encuadres contextuales precedentes o bien a través de la historia legislativa), lo que, a su vez, invoca una serie de emociones que profundizan e intensifican la interpretación judicial de una garantía jurídica (libertad de asociación, libertad de expresión, igualdad, seguridad de la persona, etc.). Este artículo analiza la forma en que las invocaciones a la historia política o a abusos de derechos (por mal o bien definidos que estén) sirven para formar un conjunto de emociones de servicio (que sirven para establecer un estado de ánimo concreto), que guían la aplicación judicial de la doctrina en casos de presuntas violaciones de derechos constitucionales.

scholarly journals Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Richard Shay ◽  
Ndivhuwo Ishmel Moleya
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Trade Mark ◽  
Constitutional Rights ◽  
Trade Mark Infringement ◽  
Correct Conclusion ◽  
General Obligation ◽  
The Common ◽  
Judicial Reasoning ◽  
The Republic

This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.

scholarly journals Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Rachael L. Johnstone
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Faroe Islands ◽  
Legal Studies ◽  
Legal Literature ◽  
The Common ◽  
Judicial Reasoning ◽  
The University ◽  
Constitutional Judicial Review ◽  
Selection Of

West-Nordic Constitutional Judicial Review is based on Kári á Rógvi’s doctoral dissertation, defended in 2009 at the University of Iceland with the esteemed Eivind Smith and Guðmundur Alfreðsson as thesis opponents. It provides an excellent account of judicial review in the West-Nordic tradition (Norway, Denmark, Iceland, the Faroe Islands and Greenland) based on a selection of ‘leading cases, reminiscent of the common law approach to legal studies. As such, it is something of a novelty in the Nordic legal literature and a long overdue supplement to what Kári laments as the staid legal treatises that form the basis of Nordic legal educations (323-335).

Judicializing Religion

2020 ◽  
pp. 157-188
Author(s):  
Yvonne Tew
Keyword(s):  
Religious Freedom ◽  
Freedom Of Expression ◽  
Basic Structure ◽  
Constitutional Rights ◽  
Quarter Century ◽  
The Past ◽  
Malaysian Politics ◽  
Role Of Religion ◽  
Civil Courts

Religion has become one of the great fault lines of modern Malaysian politics and adjudication. This chapter focuses on the role of religion and religious freedom in the contemporary Malaysian state. It outlines the constitution-making process to locate the place of Islam and religious liberty within the Constitution’s generally secular original framework. Over the past quarter century, the politicization and judicialization of religion has led to an expansion of Islam’s role, fueling polarizing debate over the Malaysian state’s identity as secular or Islamic. Courts have contributed to elevating Islam’s position by deferring jurisdiction to the Sharia courts and expansively interpreting Islam’s constitutional position. The chapter then turns from the descriptive to the prescriptive. It discusses how courts can draw on the constitutional basic structure doctrine to entrench the judicial power of the civil courts to reclaim jurisdictional areas that engage constitutional rights which in the past they have ceded to the religious courts, such as apostasy. It also outlines how courts can use a purposive interpretive approach in line with the Constitution’s framework of protection for religious minorities and individual rights. Finally, it shows how the court can operationalize a proportionality analysis to closely scrutinize government regulations that restrict religious freedom or freedom of expression.

scholarly journals Is Separation still an Important Component of Marital Dissolution?

2008 ◽  
Vol 35 (1) ◽  
pp. 187
Author(s):  
Wayne W. McVey, Jr.
Keyword(s):  
Common Law ◽  
Marital Dissolution ◽  
Marital Separation ◽  
The Past ◽  
Family Form ◽  
New Family ◽  
Time Period ◽  
The Common ◽  
Marital Breakdown ◽  
Statistics Canada

This research examines the diversification and changes in the Canadian family form over the past 25 years. While the husband-wife family has declined over this time period, it still remains the dominant family form. Statistics Canada census statistics allows for the examination of new family forms since 1981, as the common-law partnership and the now married have been distinguished within the husband-wife family category. With the introduction of the 1968 and 1985 Divorce Acts, separation became a major ground for divorce in Canada. Marital breakdown should be measured by the incidence of both divorce and separation. The popularity of cohabitation further clouds the measuring of total partnership breakdown since separation of cohabiting partners is not recorded. This research focuses on the change in marital separation and the increase in cohabitation since 1981. Marital separation has declined in its contribution to total marital dissolution since 1985.

What Does History Matter to Legal Epistemology?

2011 ◽  
Vol 5 (3) ◽  
pp. 383-405 ◽  
Author(s):  
Maksymilian Del Mar
Keyword(s):  
Common Law ◽  
General View ◽  
Dynamic Content ◽  
The Past ◽  
History Matter ◽  
The Common ◽  
Legal Epistemology

Abstract This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions (a ‘timeless what’ that determines its own relevance), but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as ‘thick resources with dynamic content’. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law’s past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present.

The Chartists and the Constitution: Revisiting British Popular Constitutionalism

2017 ◽  
Vol 56 (1) ◽  
pp. 70-90 ◽  
Author(s):  
Josh Gibson
Keyword(s):  
Nineteenth Century ◽  
Natural Law ◽  
Political Development ◽  
Common Law ◽  
The Past ◽  
The Common ◽  
Fundamental Law ◽  
English Law ◽  
Scholarly Attention ◽  
Popular Constitutionalism

AbstractDespite having a powerful influence on the historiography of radicalism and nineteenth-century politics for the past several decades, the language of the constitution has not recently received scholarly attention. In Chartist and radical historiography, the constitution is usually treated as a narrative of national political development. This article extends the horizons of Chartist constitutionalism by exploring its similarities with American constitutionalism. By doing so, it also opens up questions regarding the ideas of the movement. Like the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority. This perception was informed by a belief that the constitution rested on the authority of the fixed principles of fundamental law, which they argued placed limits beyond which Parliament had no power to reach. As a result, the Chartists imagined that the British constitution functioned like a written constitution. To support this claim, they drew on a sophisticated interpretation of English law that argued that the common law was closely related to natural law.

scholarly journals FREEDOM OF EXPRESSION AND CAMPUS PROTESTS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
George Barrie
Keyword(s):  
Freedom Of Expression ◽  
Cape Town ◽  
Constitutional Rights ◽  
Western Cape ◽  
Freedom Of Association ◽  
The Supreme Court ◽  
Primary Focus ◽  
The Right ◽  
University Of Cape Town ◽  
The University

Hotz v University of Cape Town (2016 (4) All SA 723 (SCA)) presented the Supreme Court of Appeal (SCA) with an ideal set of circumstances to incisively deal with the precise meaning and parameters of section 16(1) of the Constitution, which mandates that everyone has the right to freedom of expression and section 16(2), which states that section 16(1) does not extend to advocacy of hatred that is based on race or ethnicity and that constitutes incitement to cause harm. It also afforded the SCA an opportunity to express itself on ancillary constitutional rights such as section 17 (the right to assemble and demonstrate); section 15 (the right of freedom of opinion); section 18 (the right to freedom of association) and section 19(1) (the right to campaign for a political cause).  The main focus of the judgment of the SCA (per Wallis JA), however, was on freedom of expression (s 16(1)) which will be the primary focus of this note.Vehement protests on the campus of the University of Cape Town (UCT) constituted the background to this matter being heard by the SCA as an appeal against a final interdict of the Western Cape High Court. The final interdict excluding appellants from the campus of UCT was granted by Allie J who granted leave to appeal. The appeal specifically concerned the granting of the final interdict and the factual allegations made by the university regarding the nature of the protests which led to the granting of the final interdict.

scholarly journals Defining and Describing What We Do: Doctrinal Legal Research

2012 ◽  
Vol 17 (1) ◽  
pp. 83 ◽  
Author(s):  
Terry Hutchinson ◽  
Nigel Duncan
Keyword(s):  
Research Methodology ◽  
Research Method ◽  
Common Law ◽  
Legal Research ◽  
Interdisciplinary Work ◽  
Applied Logic ◽  
The Core ◽  
The Past ◽  
Grant Applications ◽  
The Common

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

Sign in / Sign up

Export Citation Format

Share Document