Keep Law Alive

An account of the author’s recent book, Keep Law Alive, including: an assessment of the dangers which threaten law and the democracy it depends upon; an analysis of the ethically and intellectually praiseworthy methods and traditions law once enjoyed, using as examples the Model Penal Code, a pair of judicial opinions by Justice Holmes, and an essay on affirmative action; the elaboration of a way of thinking about law not as rules or policy or theory but as an inherently unstable but crucially important structure of thought and expression; and finally some attention to the question, how we might resist the corruption of law and, failing that, and using Augustine as an example, how we might live with its loss.

PMLA 2002’s Gremlins: Anatomizing the Labyrinth of Recent Amendments and Precedent

Enacted to regulate the incubus of organized crime, India’s Prevention of Money Laundering Act has quickly degenerated into interpretative chaos, with conflicting judicial opinions straining its otherwise sound provisions. Instead of chastening statutory mercuriality, close to eleven amendments to the Act have only fuelled incertitude further. The most damaging feature of the PMLA’s disarray is that the interpretive conflict eclipses the most basic punitive machinery of the Act. Part 2 of the article clarifies the relationship between the offence of money laundering and its predicate offences in the realm of how the latter ought to influence property attachment and prosecution proceedings for the former. Part 3 dissects the complication of Indian Criminal Procedure’s applicability to investigations under the PMLA and proposes an inventive two-step enquiry to determine the extent of said applicability in view of the provisions of both statutes. Part 4 chronicles the peculiar acquiescence of some Indian courts in not insisting upon furnishing written grounds of arrest to a detenu and explains why that jurisprudential course deserves to be abandoned. Lastly, Part 5 addresses the topical disputation of the effect of recent amendments on the potential revival of sui generis bail conditions under the PMLA that had previously been declared unconstitutional. The article presents a syncretism of recommended interpretative paths that the judiciary must take to remedy the recognized flaws.

Nemajetková újma při ublížení na zdraví a její vyrovnání prospěchem (compensatio lucri cum damno)

The article focuses on the tort law concerning the deduction of benefits from damages for personal injury (compensatio lucri cum damno), i.e. in the Czech law in relation to the compensation for pain and suffering, deteriorated social position and other non-pecuniary harm. At first, the article deals in general with problematic aspects associated with benefit deduction from damages for personal injury. This will be followed by an analysis of the various doctrinal and judicial opinions and the criteria according to which the relevant cases could be assessed and solved, including the available (German and Austrian) case law. The conclusion of the article will be aimed at typical groups of cases in connection with the relevant criteria for their assessment.

Legal reasoning: a textual perspective on common law judicial opinions and Chinese judgments

The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.