scholarly journals Quelques réflexions à propos du document de la C.R.D. traitant de l'homicide

2005 ◽  
Vol 26 (3) ◽  
pp. 787-798
Author(s):  
Antoine Manganas
Keyword(s):  
Vulnerable Population ◽  
Law Reform ◽  
Motor Vehicles ◽  
Financial Resources ◽  
Objective Test ◽  
Critical Approach ◽  
Reasonable Person ◽  
Spare Time ◽  
Special Category ◽  
Self Defence

The present study is a critical approach to the Canada Law Reform Commission document concerning homicide. This study deals with two particular aspects of the law of homicide. In the first chapter we suggest the creation of a special category of homicide, the « homicide passionnel », for the following reasons : first of all the substantive defences, like intoxication, self-defence, diminished responsibility and provocation are too narrow. Especially with provocation, the application of the objective test is detrimental to the more vulnerable population which lacks educational and financial resources. Secondly, we cannot compare the robber who kills by using his weapon with the person who kills in a state of excitement, jealousy or anger. Besides, many foreign laws have recognized this category of « hot-blood » homicide. So, we think that is time for Canada to abolish the defence of provocation (s. 215 Cr. C.) and create this specific offence. In the second chapter, we suggest criminalization of homicide by negligence. Actually, we can see the difficulty judges have in convicting someone for criminal negligence when the death of a person is due to trafic « accident ». Many foreign criminal codes have created this offence. We find it fair to impose the duty of the reasonable person on those who take certain risks by using motor vehicles or other machines for their benefit or spare time.

4. Infringement of copyright

2019 ◽  
pp. 73-104
Author(s):  
Stavroula Karapapa ◽  
Luke McDonagh
Keyword(s):  
Strict Liability ◽  
Copyright Infringement ◽  
Objective Test ◽  
Reasonable Person ◽  
The Public ◽  
Mental Element ◽  
What Matters

This chapter focuses on the two types of copyright infringement within the CDPA 1988: primary infringement and secondary infringement. In primary infringement, the defendants are directly involved in copying, performing, and issuing to the public the copyright work, whereas secondary infringement involves people who deal with infringing copies, or facilitate such copying or other activities that are restricted by copyright. Besides this difference that has to do with the scope of rights, there is also difference on the mental element. Unlike primary infringement that does not require knowledge or intention to infringe on the part of the alleged infringer and is hence subject to strict liability, secondary infringement occurs where the defendant knew or had reason to believe that activities in question are wrongful. This is assessed on the basis of an objective test, namely what matters is what a reasonable person would have thought in the relevant circumstances.

Outsourcing Law Reform in Developing Countries to Private Contractors: A Human Rights Perspective

2013 ◽  
Vol 2 (1) ◽  
pp. 1-16 ◽  
Author(s):  
Ilias Bantekas ◽  
Christos Kypraios ◽  
Kebreab Isaac
Keyword(s):  
Developing Countries ◽  
Human Rights ◽  
Large Degree ◽  
Development Aid ◽  
Law Reform ◽  
Financial Resources ◽  
Funding Policies

The financial resources available for the pursuit of human rights objectives has given rise to an entire industry that is reliant on human rights consultancies. This is fed by tied or other forms of development aid and there exist few controls to assess the work of the actors that make their living from this industry. To a large degree, this privatisation of law reform is exacerbated by the fact that developing countries agree to the multitude of conditions set upon them by multilateral donors, one of which is said privatisation. In this manner, donors may adversely intervene in the relevant processes and distort a situation on the ground by, for example, painting a picture that does not accord with reality solely to justify their funding policies and recommendations to the recipient State.

2. Objectivity in contract law

2021 ◽  
pp. 12-20
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

Cleanliness and Environmental Protection: An Integral Issue

2016 ◽  
Vol 8 (02) ◽  
pp. 127-130
Author(s):  
Bharat Raj Singh ◽  
Amar Jyoti Singh
Keyword(s):  
Quality Of Life ◽  
Environmental Protection ◽  
Visual Image ◽  
Future Generations ◽  
Motor Vehicles ◽  
Financial Resources ◽  
Constituent Element ◽  
The Difference ◽  
City State

The environment is a constituent element of culture in all societies. It therefore must take precedence on over all efforts to boost development and quality of life by the autonomous value of the environment and the need to protect it and manage it properly. We owe it, nevertheless, to ourselves, but chiefly to our children and future generations. An effort such as this, which aims to improve the environment and assist it to recover from human exploitation, must involve citizens, above all. We must all adopt a positive instance towards the environment and make citizens aware not to do the impossible, but adopt few simple actions that can help make the difference every day. For instance, if we separate recyclable items and place them in the special blue bins, we are not only assisting to protect the environment but to conserve natural and financial resources. If we throw small items of garbage in wastebins rather than on the street, our city will immediately become cleaner. Additionally, by depositing rubbish in the bin, we improve the visual image of our city, reduce unpleasant odours and facilitate the movement of pedestrians and motor vehicles. This paper covers day to day need to adopt cleanliness and its impact on environmental protection. Our efforts should be continuous to create a clean, environmentally-friendly city, state, country and globe at large to make our children and future generations healthy.

Labour Law, Capitalism and the Juridical Form: Taking a Critical Approach to Questions of Labour Law Reform

2020 ◽  
Author(s):  
Zoe Adams
Keyword(s):  
Law Reform ◽  
Potential Contribution ◽  
Structural Factors ◽  
Critical Approach ◽  
Labour Law ◽  
Economic Function

Abstract This article seeks to demonstrate the potential contribution that a closer attention to structural factors can make to our understanding of some of the practical problems, such as the problem of personal scope, facing labour law today. This means engaging closely with questions about labour law’s socio-economic function and, in turn, the socio-economic function of its juridical form. Having shown the importance of engaging with these issues, drawing on the works of Karl Korsch, Karl Renner and Evgeny Pashukanis for this purpose, the article shows how we can use this structural understanding of law, and labour law, to constructively inform our interventions in contemporary debates about labour law’s personal scope.

scholarly journals The inconvenience of the reasonable person standard in criminal law

Derecho PUCP ◽  
2014 ◽  
pp. 505-509
Author(s):  
Juan Pablo Pérez-León Acevedo
Keyword(s):  
Criminal Law ◽  
Minority Groups ◽  
Case Law ◽  
Human Behaviour ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Objective Standard ◽  
Reasonable Person Standard ◽  
Criminal Culpability ◽  
Self Defence

Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is  by definition  abstract, theoretical  and  general, not  reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.

2. Objectivity in contract law

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

Proposals for Reforming the Law of Self-Defence

2008 ◽  
Vol 72 (5) ◽  
pp. 409-440 ◽  
Author(s):  
Amir Pichhadze
Keyword(s):  
Reasonable Person ◽  
Objective Standard ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
Significant Attention ◽  
Law Commission ◽  
Self Defence

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

Defining provocation

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Graham Virgo
Keyword(s):  
General Principle ◽  
Self Control ◽  
Objective Test ◽  
Second Line ◽  
Objective Condition ◽  
First Line ◽  
Reasonable Person ◽  
Battered Woman Syndrome ◽  
Subjective Condition ◽  
Court Of Appeal

WHEN a defendant is charged with murder and wishes to rely on the defence of provocation, two conditions need to be satisfied. First, the provocation must have caused the defendant to lose his or her self-control suddenly and temporarily. This is the subjective condition. Secondly, the provocation must be such that the reasonable person might have reacted to it in the same way as the defendant. This is the objective condition. This condition is, however, qualified, since it is possible to imbue the reasonable person with relevant characteristics of the defendant, to see whether a reasonable person with such characteristics might have killed had he or she been provoked. Although this qualification of the objective test has been recognised for some time, it has become a matter of recent controversy as to when a particular characteristic of the defendant can be considered to be relevant and what the rationale of this qualification of the objective test actually is. Two distinct lines of authority can be identified. According to the first line, a characteristic can, generally, only be relevant if it affects the gravity of the provocation: Camplin [1978] A.C. 705 (H.L.). So, for example, if the provocation relates to the defendant's characteristic then it can be considered to be relevant, because the reasonable person would be more likely to have lost self-control if he or she had such a characteristic: Morhall [1996] A.C. 90 (H.L.), Luc Thiet Thuan [1997] A.C. 131 (P.C.). This line of authority does, however, recognise an exception to the general principle, namely that the reasonable person can be imbued with the defendant's age or gender, not because these characteristics affected the gravity of the provocation, but because they are characteristics which may affect the defendant's ability to exercise self-control: Camplin. But these are the only characteristics which can be taken into account for this reason. According to the second line of authority, however, any characteristic can be treated as relevant simply because it affects the defendant's ability to exercise self-control. This has been recognised in six recent decisions of the Court of Appeal, where the reasonable person was imbued with a wide variety of characteristics, such as battered woman syndrome (Thornton (No. 2) [1996] 1 W.L.R. 1174) and attention-seeking (Humphreys [1995] 4 All ER. 1008), simply because such characteristics affected the defendant's ability to exercise self-control.

PROVOCATION: MUDDYING THE WATERS

2001 ◽  
Vol 60 (1) ◽  
pp. 1-58
Author(s):  
Graham Virgo
Keyword(s):  
Severe Depression ◽  
Self Control ◽  
Objective Test ◽  
Privy Council ◽  
Reasonable Person ◽  
House Of Lords ◽  
Court Of Appeal

IN Smith [2000] 3 W.L.R. 654 the House of Lords by a bare majority affirmed the decision of the Court of Appeal (noted at (1999) 58 C.L.J. 7) and in doing so resolved a long-standing dispute as to which characteristics of the defendant are relevant when determining whether the reasonable person would have lost self-control and killed the victim (the objective test of provocation). Two distinct lines of authority had developed. First, a group of House of Lords and Privy Council cases had recognised that a characteristic would only be relevant where it affected the gravity of the provocation. Secondly, a line of Court of Appeal cases had recognised a wider test, whereby a characteristic would also be relevant if it affected the defendant’s ability to exercise self-control. The House of Lords has now confirmed the latter test. Consequently, in Smith itself the defendant’s severe depression was relevant because it made him less able to exercise self-control.

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