The Relationship Between the Purposes of the Law and Legal Reasoning

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.

Download Full-text

The Development of Legal Reasoning

10.1093/acprof:oso/9780190644147.003.0005 ◽

2017 ◽

Author(s):

Tom R. Tyler ◽

Rick Trinkner

Keyword(s):

Moral Development ◽

Social Order ◽

Legal Reasoning ◽

Developmental Model ◽

Legal Authority ◽

Legal Institutions ◽

Legal Socialization ◽

The Law ◽

Legal Judgments ◽

The Relationship

The cognitive developmental model of legal socialization is discussed in chapter 5. This approach emphasizes the development of legal reasoning and focuses on how such thinking shapes legal judgments about the purpose of laws, how legal authority should be used, and whether people should feel obligated to obey legal institutions. Basically, legal reasoning provides a framework to understand the nature of society and the requirements of social order, leading to judgments about the legitimacy of the law. Building on Kohlberg’s work in moral development, the legal reasoning perspective argues that people develop increasingly abstract and sophisticated models of the relationship between society and the law with respect to the position and duties of the law and the responsibilities and obligations of citizens. This provides a basis for understanding when to follow appropriate laws and when to violate laws viewed as unjust or unprincipled.

Download Full-text

Hardly theTadićof Targeting: Missed Opportunities in the ICTY'sGotovinaJudgments

Israel Law Review ◽

10.1017/s0021223715000138 ◽

2015 ◽

Vol 48 (3) ◽

pp. 329-355 ◽

Cited By ~ 1

Author(s):

Roee Ariav

Keyword(s):

International Criminal ◽

Legal Reasoning ◽

International Criminal Tribunal ◽

Legal Issues ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Missed Opportunities ◽

The Law ◽

The Relationship

TheGotovinacase presented the International Criminal Tribunal for the former Yugoslavia (ICTY) with a unique opportunity to adjudicate on issues connected with the law of targeting and international humanitarian law (IHL) in a criminal context. This opportunity was especially important given the fact that legal issues arising out of complex, intense combat situations have only rarely been adjudicated. Although Gotovina was not formally charged with carrying out unlawful attacks on civilians, attacks by Croatia on four towns over the course of ‘Operation Storm’ were the focus of the proceedings. This led both Trial and Appeal Chambers to deal with issues related to the law of targeting such as classification of military objectives, proportionality, and the intent behind an attack. This article argues that the judges failed to take full advantage of the opportunity to discuss these issues. They failed consistently to articulate the legal reasoning behind their findings; they failed to explain the branch of law on which any of their substantive determinations were based; and, perhaps most importantly, they did not explain the relationship between IHL and criminal law and how IHL is to be applied in a courtroom.

Download Full-text

Judicial Partisanship and theSlaughterhouse Cases: Investigating the Relationship Between Courts and Parties

Studies in American Political Development ◽

10.1017/s0898588x17000050 ◽

2017 ◽

Vol 31 (1) ◽

pp. 24-46 ◽

Cited By ~ 1

Author(s):

Gregory Elinson

Keyword(s):

Political Parties ◽

Building Block ◽

Legal Reasoning ◽

Judicial Behavior ◽

Limited Attention ◽

The Political ◽

Political Actors ◽

Judicial Doctrine ◽

The Law ◽

The Relationship

Scholars of judicial behavior have persuasively demonstrated that parties profoundly influence the elaboration of judicial doctrine, but have paid more limited attention to understanding how courts can transform the content of party agendas. In this article, I argue that judges can work to deliberately define the issue positions adopted by the political parties with which they are affiliated. I contend that judges can, like other political actors, use the tools of their office to further explicitly partisan goals. Although they may employ traditional modes of legal reasoning, judges may nevertheless craft their decisions in ways that prioritize certain party principles over others, interpret the law in ways that knit together the beliefs of divergent factions within their party coalition, articulate principles to guide the party's incorporation of new issues, and, in some instances, begin to outline a coherent ideological vision for the party. I develop this theory through a close examination of theSlaughterhouse Cases, regularly cited as a core building block of the American constitutional canon.

Download Full-text

A Comparative Overview of the Fair Wear and Tear Exception: the Duty of Holders of Temporary Interests to Preserve Property

Edinburgh Law Review ◽

10.3366/elr.2002.6.1.85 ◽

2002 ◽

Vol 6 (1) ◽

pp. 85-100

Author(s):

Raffaele Caterina

Keyword(s):

Common Core ◽

Complete Solution ◽

Roman Law ◽

Private Ownership ◽

Legal Systems ◽

Personal Rights ◽

Wear And Tear ◽

Long Life ◽

The Law ◽

The Relationship

“A system of private ownership must provide for something more sophisticated than absolute ownership of the property by one person. A property owner needs to be able to do more than own it during his lifetime and pass it on to someone else on his death.”1 Those who own things with a long life quite naturally feel the urge to deal in segments of time. Most of the owner's ambitions in respect of time can be met by the law of contract. But contract does not offer a complete solution, since contracts create only personal rights. Certain of the owner's legitimate wishes can be achieved only if the law allows them to be given effect in rem—that is, as proprietary rights. Legal systems have responded differently to the need for proprietary rights limited in time. Roman law created usufruct and other iura in re aliena; English law created different legal estates. Every system has faced similar problems. One issue has been the extent to which the holder of a limited interest should be restricted in his or her use and enjoyment in order to protect the holders of other interests in the same thing. A common core of principles regulates the relationship between those who hold temporary interests and the reversioners. For instance, every system forbids holder of the possessory interest to damage the thing arbitrarily. But other rules are more controversial. This study focuses upon the rules which do not forbid, but compel, certain courses of action.

Download Full-text

The Relationship Of The Christian To The Law As Expressed In Romans 10:4

10.2986/tren.001-0516 ◽

1991 ◽

Author(s):

Ping-Kuen E. Li

Keyword(s):

The Law ◽

Relationship Of ◽

The Relationship

Download Full-text

Parliamentarism and the Legislative Branch

10.1093/oso/9780198732174.003.0007 ◽

2017 ◽

Author(s):

András Sajó ◽

Renáta Uitz

Keyword(s):

Decision Making ◽

Political Parties ◽

Legislative Branch ◽

Effective Decision ◽

The Law ◽

Internal Operations ◽

Effective Decision Making ◽

The Relationship ◽

Law Making

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.

Download Full-text

The Obligation to Afford Reparation to Injured Individuals

10.1093/oso/9780198808442.003.0004 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

International Organizations ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Human Rights Treaties ◽

The Law ◽

The Right ◽

Right Of Access ◽

The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Download Full-text

Industrial districts and local governance in the Italian experience

Human Systems Management ◽

10.3233/hsm-1999-18207 ◽

1999 ◽

Vol 18 (2) ◽

pp. 131-139

Author(s):

Maurizio Mistri

Keyword(s):

Political Behavior ◽

Political Attitudes ◽

Local Governance ◽

Dynamic Processes ◽

Industrial Districts ◽

Small Enterprises ◽

Local Growth ◽

Italian Experience ◽

The Law ◽

The Relationship

This paper focuses on the problem of the governance of industrial districts in Italy. The analysis begins with an assessment of the dynamic processes that characterize the development of industrial districts, particularly as concerns the elements of a cultural nature. The relationship between local political attitudes and forms of local growth is considered, generally revealing how in the various practical examples there is a convergence between models of political behavior and the needs of the system of small enterprises. The paper ends with a brief discussion of the law 317/91, designed to establish the responsibilities and roles of the industrial districts.

Download Full-text

The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

European Review of Contract Law ◽

10.1515/ercl-2020-0026 ◽

2020 ◽

Vol 16 (4) ◽

pp. 465-488

Author(s):

Thomas M.J. Möllers

Keyword(s):

Case Law ◽

Third Party ◽

Broad Term ◽

Legal Texts ◽

Classical Methodology ◽

The Law ◽

Legal Methodology ◽

The Relationship ◽

Further Development ◽

Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Download Full-text