John Gower and the law: legal theory and practice

2017 ◽  
pp. 75-87 ◽  
Author(s):  
Conrad van Dijk
Keyword(s):  
Legal Theory ◽  
Theory And Practice ◽  
John Gower ◽  
The Law

scholarly journals The Myth of Objectivity: Implicit Racial Bias and the Law (Part 2)

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Willem Hendrik Gravett
Keyword(s):  
South Africa ◽  
Racial Bias ◽  
Legal Theory ◽  
Fundamental Principle ◽  
Human Mind ◽  
Racial Prejudice ◽  
Theory And Practice ◽  
Differential Treatment ◽  
Implicit Racial Bias ◽  
The Law

The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category.  Explicit racial prejudice, however, is only part of the problem.  Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making.  It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa – similar to the US – continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue.  After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

scholarly journals THEORIES OF VAGUENESS AND THEORIES OF LAW

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 132-152
Author(s):  
Alex Silk
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Conventional Meaning ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Content Determination ◽  
The Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

Part III Regimes and Doctrines, Ch.31 Theorizing International Organizations

2016 ◽  
Author(s):  
Klabbers Jan
Keyword(s):  
Global Health ◽  
International Organizations ◽  
Legal Theory ◽  
Atomic Energy ◽  
Theory And Practice ◽  
History Of ◽  
The Law

This chapter outlines a broad history of the development of thinking about the law of international organizations, with a focus on the legal theory of functionalism, as well as a discussion on the latter’s considerable strengths and weaknesses. Functionalism holds that states create international organizations to do things they are unable or reluctant to do on their own, yet consider inherently useful: organize postal relations, control the uses of atomic energy, regulate global health, etc. The chapter also includes a brief discussion of scholarship regarding international organizations in the broader academic landscape, with the concluding section hinting at a few challenges for both theory and practice.

scholarly journals THE LEGAL REASONING OF THE PRESIDENT’S RIGHT TO ISSUE PARDONS

SEEU Review ◽  
2017 ◽  
Vol 12 (2) ◽  
pp. 32-61
Author(s):  
Besa Arifi
Keyword(s):  
Criminal Law ◽  
18Th Century ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Theory And Practice ◽  
Head Of State ◽  
Recent Developments ◽  
The Law ◽  
Principle Of Legality ◽  
Desk Research

Abstract Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign (usually the king/queen or the emperor/empress) represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty (given by the parliament) and pardon or clemency (given by the head of the state), continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions.

scholarly journals The Myth of Objectivity: Implicit Racial Bias and the Law (Part 1)

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Willem Hendrik Gravett
Keyword(s):  
South Africa ◽  
Racial Bias ◽  
Legal Theory ◽  
Fundamental Principle ◽  
Human Mind ◽  
Racial Prejudice ◽  
Theory And Practice ◽  
Differential Treatment ◽  
Implicit Racial Bias ◽  
The Law

The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category.  Explicit racial prejudice, however, is only part of the problem.  Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making.  It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa – similar to the US – continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue.  After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

scholarly journals CASTING THE LIGHT OF THE THEORY OF OPPOSITION ONTO HOHFELD'S FUNDAMENTAL LEGAL CONCEPTS

Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
João Alberto de Oliveira Lima ◽  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi ◽  
Marcio Iorio Aranha
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Analytical Framework ◽  
The Core ◽  
Recent Developments ◽  
The Law ◽  
Opposition Theory ◽  
Legal Concepts ◽  
Number Of Authors

Abstract At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

The social uses of the law at a Soweto garbage dump: Reclaiming the law and the state in the informal economy

2016 ◽  
Vol 65 (2) ◽  
pp. 222-234 ◽  
Author(s):  
Melanie Samson
Keyword(s):  
Informal Economy ◽  
Research Agenda ◽  
Legal Theory ◽  
Social World ◽  
The State ◽  
Informal Workers ◽  
The Social ◽  
Critical Legal Theory ◽  
The Law ◽  
Social Uses

The informal economy is typically understood as being outside the law. However, this article develops the concept ‘social uses of the law’ to interrogate how informal workers understand, engage and deploy the law, facilitating the development of more nuanced theorizations of both the informal economy and the law. The article explores how a legal victory over the Johannesburg Council by reclaimers of reusable and recyclable materials at the Marie Louise landfill in Soweto, South Africa shaped their subjectivities and became bound up in struggles between reclaimers at the dump. Engaging with critical legal theory, the author argues that in a social world where most people do not read, understand, or cite court rulings, the ‘social uses of the law’ can be of greater import than the actual judgement. This does not, however, render the state absent, as the assertion that the court sanctioned particular claims and rights is central to the reclaimers’ social uses of the law. Through the social uses of the law, these reclaimers force us to consider how and why the law, one of the cornerstones of state formation, cannot be separated from the informal ways it is understood and deployed. The article concludes by sketching a research agenda that can assist in developing a more relational understanding of the law and the informal economy.

Jesus' Legal Theory—A Rabbinic Reading

2007 ◽  
Vol 23 (1) ◽  
pp. 97-130 ◽  
Author(s):  
Chaim Saiman
Keyword(s):  
New York ◽  
Legal Theory ◽  
New York Times ◽  
Past Century ◽  
Politics And Religion ◽  
The Supreme Court ◽  
American Law ◽  
The Law ◽  
Political Philosopher ◽  
President Bush

These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.

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