The Neo-Behavioral Approach to the Judicial Process: A Critique

1963 ◽  
Vol 57 (3) ◽  
pp. 593-603 ◽  
Author(s):  
Wallace Mendelson
Keyword(s):  
Legal System ◽  
The Other ◽  
Behavioral Approach ◽  
Lower Court ◽  
Judicial Process ◽  
Legal Rules ◽  
Court Judge ◽  
Good Medicine ◽  
The Law ◽  
The Times

A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

scholarly journals Criminal Justice in Post-Mao China: Some Preliminary Observations

1981 ◽  
Vol 87 ◽  
pp. 440-469 ◽  
Author(s):  
Shao-Chuan Leng
Keyword(s):  
Criminal Justice ◽  
Legal System ◽  
World Wide ◽  
Legal Order ◽  
The Other ◽  
Judicial Process ◽  
Other Hand ◽  
The Law

China' trial of the “ gang of four ” and six other members of the “ Lin-Jiang cliques ” has attracted world-wide attention.* The Chinese press has pictured the trial as a landmark: the end of a lawless era, a successful test of the new legal system, and a demonstration that all are equal before the law.1 Contrary to Chinese leaders’ expectations, however, many observers have considered the trial as essentially a political rather than a legal exercise.2 On the other hand, the holding of this trial appeared to reflect, among other things, Beijing' desire to publicize its commitment to legality, and the controlled and selected reporting of the court sessions has given the outside world glimpses of the judicial process under China' new and emerging legal order.

Private property, public access and occupiers’ liability

Legal Studies ◽  
1995 ◽  
Vol 15 (3) ◽  
pp. 335-355
Author(s):  
FR Barker ◽  
NDM Parry
Keyword(s):  
Legal System ◽  
Private Property ◽  
Good Deal ◽  
Public Access ◽  
The Other ◽  
Legal Responsibility ◽  
Policy Preference ◽  
Duty Of Care ◽  
Liability Rules ◽  
Legal Rules

There is nothing new about legal rules which provide that a person who is in control of land owes a duty of care to entrants thereto. These occupiers’ liability rules are often seen as something primarily to do with tort, but their content and substance are also likely to reveal a good deal about the ‘property policy’ of the legal system in question, in the sense that they will indicate the respective weight and importance attachkd to various kinds of competing claim over land. A legal system containing rules that restrict the circumstances in which those with individual, controlling claims over land owe a duty of care to other persons entering that land would appear to indicate a policy preference for supporting and protecting ‘private property’ claims to land above others. On the other hand, a system which imposes on those controlling land a greater degree of legal responsibility for persons entering thereon may be one based on a policy of recognising, protecting and supporting a range of claims in land beyond those of a narrow, private nature.

scholarly journals O rozgraniczaniu statutów i wsysaniu regulacji prawnej (na przykładzie prawa stosowanego do oceny różnych aspektów powołania i funkcjonowania wykonawcy testamentu i zarządcy sukcesyjnego przedsiębiorstwem)

2020 ◽  
pp. 159-177
Author(s):  
Maksymilian Pazdan
Keyword(s):  
International Law ◽  
Legal System ◽  
Private International Law ◽  
Legal Basis ◽  
Legal Rules ◽  
Eu Regulation ◽  
The Will ◽  
The Law ◽  
The Eu

The position of the executor of the will is governed by the law applicable to succession (Article 23(2)(f) of the EU Regulation 650/2012), while the position of the succession administrator of the estate of a business of a physical person located in Poland is subject to the Law of 5 July 2018 on the succession administration of the business of a physical person (the legal basis for such solution is in Article 30 of the EU Regulation 650/2012). However, if the court needs to determine the law applicable to certain aspects of appointing or functioning of these institutions, which have a nature of partial or preliminary questions, these laws will apply, as determined in line with the methods elaborated to deal with partial and preliminary questions in private international law. The rules devoted to the executors of wills are usually not self-standing. In such situations, the legislators most often call for supportive application of the rules designed for other matters existing in the same legal system (here — of the legis successionis). This is referred to as the absorption of the legal rules.

‘LESSER BREEDS WITHOUT THE LAW’: THE BRITISH ESTABLISHMENT AND THE DREYFUS AFFAIR, 1894–1899

1998 ◽  
Vol 41 (2) ◽  
pp. 495-510 ◽  
Author(s):  
ROBERT TOMBS
Keyword(s):  
Political Culture ◽  
Prime Minister ◽  
The Other ◽  
Anglo Saxon ◽  
Queen Victoria ◽  
The Press ◽  
Dreyfus Affair ◽  
The Law ◽  
The Times

Queen Victoria, her court, the embassy in Paris, the prime minister, and the press, led by The Times, were early and impassioned sympathizers with Alfred Dreyfus and bitter critics of his persecutors. This article traces the development of their views and the information available to them, analyses the principal themes as they saw them, and attempts to explain how and why they formed their opinions. It considers why the Dreyfusard position was so congenial to them. It argues that their own principles and prejudices – conservative, patriotic, Anglo-Saxon, and Protestant – were confirmed by a critique of French political culture, seen as corrupted by a combined heritage of absolutism, revolution, Catholicism, and demagoguery. This appears to be confirmed by contrast with the few dissenting voices in Britain, on one hand Catholic and Irish, on the other, anti-Semitic socialist, who showed little sympathy with the Dreyfusards, and even less with the views of their British supporters.

Letter to The Times

2016 ◽  
pp. 237-238
Author(s):  
Donald W. Winnicott
Keyword(s):  
Psychiatric Diagnosis ◽  
The Other ◽  
The Public ◽  
The Law ◽  
The Times

In this letter to The Times, Winnicott frames a response to reports on delinquency, crime, and insanity and emphasises the importance of considering the ‘other half’ of every antisocial act, that is, society’s revenge feelings. Unpunished misdemeanours or crimes swell the reservoir of unconscious public revenge, and it is important to educate the public that the antisocial child or adult is antisocial because he is ill. The law must follow this by considering how far public (unconscious) feeling needs punishment to be given, regardless of the psychiatric diagnosis.

scholarly journals Transfer of Ownership in fiducia and Trust – Preliminary Considerations on the Possibilty of Application of the Hague Convention on the Law Applicable to Trusts and on their Recognition

2018 ◽  
Vol 55 (3) ◽  
pp. 579-605
Author(s):  
Tomislav Karlović
Keyword(s):  
Legal System ◽  
Hague Convention ◽  
Roman Law ◽  
Real Property ◽  
Legal Rules ◽  
Significant Difference ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Hague Convention

Considering the main characteristics of fiducia in Roman law, as well as its functions and place within the real property law and the law of obligations, two features that are also prominent in the definition of anglosaxon trust stand out. These are the fiduciary nature of the relationship between the interested parties, as fides (trust) formed the initial basis of both institutes in the period before they were legally recognized, and the transfer of ownership made for specific purpose, different from the regular enjoyment of the object by the owner. However, there is a significant difference between the two (fiducia and trust) becuase of the duality between common law and equity in English legal system. While the mutual interests of the parties to fiducia in Roman law were protected only by personal actions (actiones in personam), parties’ proprietary interests in English trust were (and still are) recognized with the parallel existence of legal and equitable title. In contemporary Croatian law of real property the closest thing to the division of titles exists with regard to the conditionally transferred ownership as regulated in Art. 34 of Ownership and Other Proprietary Rights Act, entaling the division on prior and posterior ownership, both of which can be entered into Land registry and other registries. In the article it is analysed how this division and the following registration of both titles could allow for the effects to be given to trusts, in case it would be pondered on the benefits of accession of Croatia to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly, after the exposition of Croatian law, it is given a short overview of English trust with emphasis on trusts of land and, subsequently, of the rules of the Hague Convention on the Law Applicable to Trusts and on their Recognition. In the conclusion it is argued that perceived incompatibility of trust with civilian legal system can be overcome in Croatia with the help of extant legal rules regarding conditionally transferred ownership. Also, this incompatibility has already been refuted in several European continental countries from which examples lessons should be studied and learned, what would be the next step in the deliberations on the accession to the Hague Convention on the Law Applicable to Trusts and on their Recognition.

Legal Diversity in the Age of Taqlid: the Four Chief Qadis Under the Mamluks

2003 ◽  
Vol 10 (2) ◽  
pp. 210-228 ◽  
Author(s):  
Yossef Rapoport
Keyword(s):  
Legal System ◽  
Turning Point ◽  
Judicial System ◽  
The Other ◽  
Legal Rules ◽  
Other Hand ◽  
History Of ◽  
School Affiliation

Sultan Baybars' decision to appoint four Chief Qādīs , one from each of the Sunni schools of law, has long been recognized as a turning point in the history of the madhhabs. To date, historians have explained this decision only in political or ideological terms, paying little attention to its implications for the judicial system. Here I argue that the purpose of the new quadruple structure of the judiciary was two-fold: to create a uniform but at the same time flexible legal system. The need for predictable and stable legal rules was addressed by limiting qādīs' discretion and promoting taqlīd , i.e., adherence to established school doctrine. The establishment of Chief Qādīs from the four schools of law, on the other hand, allowed for flexibility and prevented the legal system from becoming too rigid. The quadruple judiciary enabled litigants, regardless of personal school affiliation, to choose from the doctrines of the four schools.

10. The Future of the English Legal System

2017 ◽  
Author(s):  
Mark Thomas ◽  
Claire McGourlay
Keyword(s):  
Human Rights ◽  
Legal System ◽  
The Other ◽  
European Convention ◽  
Essential Information ◽  
System P ◽  
The Future ◽  
The Times ◽  
Political Economic ◽  
The Eu

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This concluding chapter assesses the future of the English legal system (ELS). It argues that the ELS will continue to grow and develop in order to move with the times. Each development may individually not have such significant impact on the ELS; however, when coupled with the other development, it is more likely that the development may significantly alter people's understanding of the ELS. Change in the ELS may come from political, economic, legal, social, and international factors. The chapter then considers some of the key debates, events, and activities that may shape the future of the ELS. These issues include the UK's membership in the EU, signatory of the European Convention on Human Rights, and transformation of the justice system.

The Adaptation of Imported Law in Africa

1960 ◽  
Vol 4 (2) ◽  
pp. 66-78 ◽  
Author(s):  
Kenneth Roberts-Wray
Keyword(s):  
Common Sense ◽  
The Other ◽  
Law Reform ◽  
Good Sense ◽  
Legal Rules ◽  
English Law ◽  
The Law ◽  
Law And Justice ◽  
The One ◽  
Law Student

British administration in overseas countries has conferred no greater benefit than English law and justice. That may be a trite observation, but I offer no apology. It has been said so often by so many people—as many laymen as lawyers and perhaps more Africans than Englishmen—that it must be assumed to be true. But what, in this context, are English law and justice, or similar expressions (it is put in many different ways) to be taken to comprehend ? I have heard one or two lawyers who have served overseas speak as if there were a rebuttable presumption that anything suitable for this country should be acceptable for a country in Africa. Even if that were true, and I am sure it is not, it would not that all English legal rules and institutions are appropriate for Africa, for they are not even suitable for England. It is only too true that the law is sometimes “an ass”. Not so often as some laymen like to claim, though laymen may be fair judges of what is good sense in law. I well remember how as a law student I became impatient with principles, especially in the law of torts and the rules of evidence, which to my mind left a large gap between law on the one hand and justice or common sense on the other. I am well aware that in my critical attitude I was at one with the majority, and all lawyers must welcome the labours of the Law Reform Committees, which have borne fruit in a steady stream of important Bills during the last thirty years.

Consensual Elements in German Criminal Procedural Law

2014 ◽  
Vol 15 (1) ◽  
pp. 15-42
Author(s):  
Folker Bittmann
Keyword(s):  
Legal System ◽  
Criminal Procedure ◽  
The Other ◽  
The Past ◽  
Procedural Law ◽  
Other Hand ◽  
The Law ◽  
The One

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-calledprocedural truth.On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.

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