scholarly journals Action in Law’s Empire: Judging in the Deliberative Mode

2016 ◽  
Vol 29 (2) ◽  
pp. 431-456
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Classical Tradition ◽  
Practical Reason ◽  
Theoretical Perspective ◽  
The State ◽  
Legal Cases ◽  
The Law ◽  
Do So

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

Constitutional Rights and Social Welfare: Exploring Claims-Making Practices in Post-Apartheid South Africa

2020 ◽  
Vol 53 (1) ◽  
pp. 25-48
Author(s):  
Whitney K. Taylor
Keyword(s):  
South Africa ◽  
Social Welfare ◽  
Neighborhood Context ◽  
The State ◽  
Constitutional Rights ◽  
The Law ◽  
Material Conditions ◽  
Do So ◽  
The Way

When do individuals choose to advance legal claims to social welfare goods? To explore this question, I turn to the case of South Africa, where, despite the adoption of a "transformative" constitution in 1996, access to social welfare goods remains sorely lacking. Drawing on an original 551-person survey, I examine patterns of legal claims-making, focusing on beliefs individuals hold about the law, rights, and the state, and how those beliefs relate to decisions about whether and how to make claims. I find striking differences between the factors that influence when people say they should file a legal claim and when they actually do so. The way that individuals interpret their own material conditions and neighborhood context are important, yet under-acknowledged, factors for explaining claims-making.

Mechanical Restraint

1896 ◽  
Vol 42 (176) ◽  
pp. 131-131
Keyword(s):  
The State ◽  
Mechanical Restraint ◽  
The Law ◽  
Do So

The evils of wrong-doing are great and far-reaching, and not the least of these evils are the effects of the regulations which wrong-doing calls forth, and which are intended to prevent similar wrong-doing in future. In any case it is difficult to forecast the effect of legislation. It is never certain that legislation will prevent the evil that it is designed to prevent; but we may be confident that, whether it do so or not, it will produce other evils which were neither intended nor anticipated by its authors. The law which forbad the combination of workmen, for example, did not prevent their combination, and was indirectly responsible for many trade outrages. The law which forbids the sale of intoxicating liquors in the state of Maine similarly does not prevent their sale, but indirectly produces much lying and dishonesty.

Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

2021 ◽  
pp. 297-302
Author(s):  
Marc Galanter
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Change ◽  
System P ◽  
The Law ◽  
Over Time ◽  
Do So ◽  
The Way

This article proposes some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system as a means of redistributive change. Specifically, the question is under what conditions litigation can be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts. Because of differences in their size, differences in the state of the law, and differences in their resources, some of the actors in society have many occasions to utilize the courts; others do so only rarely. One can divide these actors into those claimants who have only occasional recourse to the courts (one-shotters) and repeat players who are engaged in many similar litigations over time. The article then looks at alternatives to the official litigation system.

Confidentiality and Patients’ Records: Balancing the Interests of Society and the Individual

1979 ◽  
Vol 7 (1) ◽  
pp. 49-70
Author(s):  
Robert E. Paul
Keyword(s):  
Third Parties ◽  
Legal Cases ◽  
The Law ◽  
The Individual ◽  
The Right ◽  
Privileged Communications ◽  
Physician Patient ◽  
Do So

This article defines and describes the interrelated but conceptually distinct terms “confidentiality,” “privilege,” “privileged communications,” “privacy,” and “records.” It reviews the parameters of these words, discusses the variance between the extent of the physician-patient and that of the much broader licensed psychologist-patient privilege in Pennsylvania and, in particular, reviews the situations in which assertions of confidentiality and privilege cannot prevent third parties from gaining access to records and the information contained in them and the legal cases which set out the law in these areas. Finally, it reviews the demands to see records by patients and the increasing willingness of courts, legislators, and regulators to grant not only access but also the right to correct, add to, or destroy such records if the patient wishes to do so.

scholarly journals Proceeding the prosecutor’s waiver: between law and reality

2021 ◽  
pp. 6-11
Author(s):  
Tatiana Vizdoaga ◽  
Keyword(s):  
Driving Force ◽  
The State ◽  
Criminal Trial ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
The Law ◽  
Core Issues ◽  
Trial Phase ◽  
Do So

The prosecution is the driving force behind the criminal proceedings. By presenting the prosecution with all his energy, insistence and competence, the prosecutor is obliged to do so only to the extent that the guilt is proven, taking into account the evidence supporting the defendant’s position. The prosecutor himself is obliged to strictly observe the law, to oppose any abuses and violations, regardless of the party whose interests are harmed. For the prosecutor, supporting the accusation is not an end in itself; or, the well-founded waiver of the accusation, as well as the support of the accusation, equally contribute to the achievement of the purpose of the criminal trial. This study discusses certain core issues related to the waiver of the state accuser to charge the trial phase of the criminal case.

scholarly journals Pemalsuan Akta Autentik Sebagai Aspek Pidana Notaris

BESTUUR ◽  
2019 ◽  
Vol 7 (2) ◽  
pp. 49
Author(s):  
M. Jamil
Keyword(s):  
Criminal Code ◽  
The State ◽  
Literature Study ◽  
Legal Cases ◽  
Normative Analysis ◽  
The Law ◽  
Notary Public

<p>The notary is known as a respected official in accordance with the mandate of the law. In Article 1 paragraph 1 of the Amended UUJN, it is stated that a Notary Public is authorized to make an authentic deed and has other authorities as referred to in this Law or based on other laws. Sometimes the labeling of the word "honorable" carried by a notary is injured by irresponsible notaries. many persons who do not think long will be the result of what has been done. The increasing number of notaries and the complexity of the problems faced by a notary public there are also notaries who are entangled with legal cases related to authentic deed forgery. The State of Indonesia is a state of law, in a state of law all people are treated equally before the law, this also applies to the profession of Notary. Notaries can be convicted if they meet the criminal elements contained in Article 263 paragraph (1) and Article 264 paragraph (1) of the Criminal Code. In this study, the author conducted a juridical-normative analysis based on literature study.</p><p><strong> </strong></p><p><strong>Keywords: </strong>Authentic Deed, Criminal Aspects, Notary Public.<strong></strong></p>

Incentivizing the Law

2020 ◽  
pp. 68-81
Author(s):  
Poulami Roychowdhury
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Financial Support ◽  
Job Training ◽  
Training Programs ◽  
Medical Assistance ◽  
Legal Cases ◽  
Potential Benefits ◽  
The Law ◽  
Do So

Before they could propel women toward the criminal justice system, brokers had to contend with the fact that most women wanted to “run a family.” Before and during the actual work of mediation, brokers thus had to convince women to reorient their preferences. Chapter 5 shows how brokers encouraged women to approach the law for assistance. To do so, brokers provided concrete services and rewards: therapy, associational membership, job training programs, medical assistance, financial support. These psychological, social, and material incentives lowered both the perceived and the actual costs of legal cases for individual women while raising the potential benefits.

scholarly journals Alain Badiou’s Suturing of the Law to the Event and the State of Exception

2016 ◽  
Vol 24 (1) ◽  
pp. 192-204
Author(s):  
Antonio Calcagno
Keyword(s):  
The State ◽  
Carl Schmitt ◽  
State Of Exception ◽  
Legal Subject ◽  
New Form ◽  
The Law ◽  
Established Order ◽  
Do So ◽  
New Time

This article questions whether we can posit a more radical desuturing of the law from the event: Can radical shifts in law produce events? Can the law itself be an event, thereby conditioning the very nature of the event itself, creating a new subjectivity and a new time?  I would like to argue that the law can do so. How? Badiou begins “The Three Negations” by discussing the work of the German jurist Carl Schmitt (TN 1877). I would like to argue that the state of exception, as elaborated by Carl Schmitt, can serve as the willed decision of a sovereign that brings about an event.  We can understand the sovereign as a kind of legal subject that has the force to bring about a new event, rupturing with an established order and introducing a new form of subjectivity and time. 

James Brown Scott, 1866–1943

1944 ◽  
Vol 38 (2) ◽  
pp. 183-217 ◽  
Author(s):  
George A. Finch
Keyword(s):  
Practical Experience ◽  
International Community ◽  
The State ◽  
Human Soul ◽  
Harvard College ◽  
Good Fortune ◽  
The Law ◽  
Do So

Sensing that it might be an epilogue, as in fact it turned out to be, to his life’s work, Dr. Scott on April 1, 1939, wrote in the preface to the last of a long list of legal and scholarly volumes which bear his name as author or editor, as follows: “For nearly half a century, from the time of entering Harvard College until the present day, I have been deeply interested in the fundamental conceptions of law and of the state; and in later years it has been my good fortune to have had practical experience with the law of the state, and especially with the law of the international community.” Togive a brief account of any busy person’s life of fifty years would be difficult; to attempt to do so adequately for a man of Dr. Scott’s dynamic personality, vivid imagination, keen intellect, tireless energy, cultured mind, and human soul seems almost futile; for each of his active years one might write a separate article and not overdo the task.

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