The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire

1985 ◽  
Vol 3 (2) ◽  
pp. 219-292 ◽  
Author(s):  
G. Blaine Baker
Keyword(s):  
Twentieth Century ◽  
North American ◽  
Legal Culture ◽  
Legal Positivism ◽  
Upper Canada ◽  
Legal Thought ◽  
Upper Canadian ◽  
The Law ◽  
British North American ◽  
The Way

Theavailabilityof the literature of the law, an aspect of legal culture rarely considered in twentieth century Canadian commentary on the ‘reception’ of imperial laws, must have had a great deal to do with the way that sources of law informed and reflected the developing jural values, doctrine, and methodology of the British North American provinces. Yet locally-prevalent versions of legal positivism, which find expression in formalistic, contemporary constitutional scholarship on transferral issues, have tended to suppress or render irrelevant inquiries into the way that such intellectual forces as law books actually affected the development of the legal culture of Upper Canada/Ontario.

The Law

2021 ◽  
pp. 256-269
Author(s):  
Diego Quaglioni
Keyword(s):  
Legal Culture ◽  
Theoretical Framework ◽  
Roman Law ◽  
The Political ◽  
Legal Thought ◽  
The Law ◽  
Political Philosopher ◽  
Legal Concepts ◽  
The Way

This chapter discusses the way Dante’s major works, like Monarchia and Convivio, articulate a strong and complex interrelation among religious, political, and legal concepts. Dante’s Commedia, too, is a universal masterpiece whose literary-theoretical framework is simultaneously and manifestly a legal one. Dante the political philosopher as well as Dante the poet fully assimilated the legal culture of his century. He was not a canonist or a jurist either, even though he quoted canon and Roman law everywhere, castigating papal decretals and the decretalists in the harshest terms but also following some traditional lines of legal thought. Indeed, the legal maxims quoted by Dante are one with the structure of his discourse and argumentation, even when Dante follows closely precise legal enunciations of the sources, showing how phrases from the texts of the Corpus iuris civilis or of the Corpus iuris canonici had become part of general educated discourse among non-lawyers.

Contract as Promise: Lessons Learned

2019 ◽  
Vol 20 (2) ◽  
pp. 367-379
Author(s):  
Charles Fried
Keyword(s):  
Twentieth Century ◽  
Contract Theory ◽  
Choice Theory ◽  
Contract Law ◽  
Lessons Learned ◽  
Self Determination ◽  
Theory Approach ◽  
The Law ◽  
The Way

Abstract In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution . . . but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view. . .. We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.

Development of Comparative Law in France

2019 ◽  
pp. 28-53
Author(s):  
Bénédicte Fauvarque-Cosson
Keyword(s):  
Twentieth Century ◽  
Comparative Law ◽  
Distinctive Features ◽  
The Third ◽  
Legal Thought ◽  
The Law

France has a long and solid tradition of comparative law. This article traces the discipline’s development in France, describing its strengths and weaknesses. As universal a science as it is, comparative law has distinctive features in each country. While there is currently no such thing as French or Italian comparative law in the sense that there is French or Italian contracts law, there is an identifiable French style in comparative law that is closely related to the development of French legal thought in general. The never-ending question of the purpose of comparative law emerges as one of the fundamental jurisprudential debates of the twentieth century. The first section of this article details the historical rise of comparative law in France. The second section chronicles its decline. The third section predicts its renaissance, provided French scholars, practitioners, and judges give the study of comparative law the regard it is due, in the light of the internationalization and Europeanization of the law.

A Question of Interpretation: The Roman Rota and the Theology of Marriage

2006 ◽  
Vol 8 (39) ◽  
pp. 425-437
Author(s):  
Aidan McGrath Ofm
Keyword(s):  
Twentieth Century ◽  
Catholic Church ◽  
Canon Law ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
Code Of Canon Law ◽  
Complete Reversal ◽  
The Law ◽  
Roman Catholics ◽  
The Way

Judges need guidance if they are to apply the law in particular circumstances with an even hand. For Roman Catholics, Canon 19 of the 1983 Code of Canon Law provides this guidance by reference to the practice of the Roman Curia and by the constant opinion of learned authors. Useful as these supplementary sources are, they mean that judges have to trust that those responsible for making decisions in the Roman Curia and the learned authors have drawn their conclusions on a sound basis. This study considers what happened when a specific document was misunderstood in the Roman Catholic Church for almost four hundred years. The document, a letter from Pope Sixtus V to his Nuncio in Spain in 1587, responded to a specific query concerning the capacity for marriage of men who had been castrated. The interpretation of the letter defined the Roman Catholic Church's concept of marriage in general and its understanding of the impediment of impotence for four centuries. In the twentieth century, several Roman Catholic judges and canonists refused to take at face value the conclusions offered by other judges and learned authors, and decided to carry out their own analysis of the document in question. This resulted in a complete reversal of the way in which marriage cases were considered by the Apostolic Tribunal of the Roman Rota, and contributed to the emergence of a much richer and more integrated theology of marriage.

Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915–1943

1993 ◽  
Vol 11 (1) ◽  
pp. 59-100 ◽  
Author(s):  
Daniel R. Ernst
Keyword(s):  
Twentieth Century ◽  
Moral Philosophy ◽  
William James ◽  
Social Practices ◽  
Legal Thought ◽  
Standards Of Conduct ◽  
Industrial Disputes ◽  
The Law ◽  
The Individual ◽  
Developing Society

At the turn of the twentieth century, when highbrow political thinkers rebelled against the consensual epistemology and ethics of the Victorians, when they argued, as William James did, that “neither the whole of truth nor the whole of good is revealed to any single observer,” when they declared themselves to be living in “a world where truth and justice are to be carved from culture rather than found already etched in reason,” they created an unprecedented problem in liberal political and legal thought. Previous thinkers could take the individual as the fundamental political unit and attribute to “him” a capacity for knowing and doing right that “he” shared with all God's children (as “commonsense” moral philosophy held) or all participants in a consensual, organically developing society (as historicist scholarship had it). Armed with such premises, they could confidently judge diverse social practices against universal standards of conduct.

A Science Like Any Other? Classical Legal Formalism in theHalakhicJurisprudence of Rabbis Isaac Jacob Reines and Moses Avigdor Amiel

2013 ◽  
Vol 28 (1) ◽  
pp. 179-224 ◽  
Author(s):  
Yosef Lindell
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Late Nineteenth Century ◽  
Jewish Law ◽  
Legal Formalism ◽  
The Law ◽  
Internal Coherence ◽  
The Right ◽  
The University ◽  
The Way

Nineteenth century jurists sought to make law a science like any other. They believed that the law was not an unprincipled mass of archaic and contradictory rules, nor an extinct body of Latin words that should be venerated in a church reliquary and seldom studied. Rather, they said that it was time for law to take its place in the university and to be dissected under the microscope of scientific analysis. It was by these methods that law's fundamental axioms would be uncovered—which would in turn explain the relationship of all its parts to the whole. And with the right set of principles, new data could be effortlessly incorporated into an ever-growing scientific taxonomy of the law.This mode of thinking dominated both European and American legal jurisprudence in the mid- to late-nineteenth century and the early twentieth century, although it went by different names. One fundamental thread ran throughout—the law was not unprincipled, but logical. It could be reasonably explained and rationally ordered. This paper demonstrates that Rabbis Isaac Jacob Reines and Moses Avigdor Amiel, two important Jewish thinkers living at the turn of the twentieth century, saw Jewish law, orhalakha, in the same light. Although Reines and Amiel may not have been directly influenced by secular jurisprudence, many of the elements of this classical legal science provide an interesting parallel to the answers these two thinkers gave to some of the oldest problems of Jewish law. Most notably, the way in which Reines and Amiel explained the connection between the Torah's oral and written components, as well as the way in which they asserted the internal coherence ofhalakhicjurisprudence, was similar to the legal formalism of their contemporaries.

scholarly journals REFORMASI HUKUM DAN POSISI PERADILAN AGAMA DI INDONESIA

ALQALAM ◽  
2009 ◽  
Vol 26 (1) ◽  
pp. 45
Author(s):  
JAENAL ARIPIN
Keyword(s):  
Legal Culture ◽  
Judicial Power ◽  
Executive Power ◽  
Paradigm Change ◽  
The Law ◽  
Distribution Of Power ◽  
The Moment ◽  
The Way

The Religious Court has changed in the way of the law paradigm change applied in Indonesia by applying the concept of separation of power, not distribution of power. Its status and position as the administrator of judicial power, has the independency at the moment because it is not under the executive power any longer. Its competence, has also changed with new competencies: syari'ah economy, the enactment of ancestry and adoption, and of hisab and rukyah. But the material law is not changed in either old or new competency. Because there is no change in law material, the judges perform not only as the law administrator but also as the law interpreter/ rechstvinding on law in book, law in concretto, and/or living law like in legal culture. This is meant that justice seekers will ftel the pure justice.

scholarly journals Human Trafficking and Legal Culture

2010 ◽  
Vol 43 (3) ◽  
pp. 479-513 ◽  
Author(s):  
David Nelken
Keyword(s):  
Human Trafficking ◽  
Social Problem ◽  
Legal Culture ◽  
Critical Discussion ◽  
Trafficking In Persons ◽  
The Social ◽  
The Law ◽  
Palermo Protocol ◽  
The Way

This Article discusses the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons. In the first part it offers a critical discussion of what is entailed by speaking of a “shortfall” of enforcement in dealing with the social problem of human trafficking. It then goes on to show that there are two competing narratives of this problem and of the way it is being responded to, and explains why we need to learn more about the interests and values that condition the “law in action.” In the last section the Article discusses the potential relevance of the idea of the “legal culture” for explaining the patterns of “law in action” in different countries and different agencies. The Article's overall aim is to show the existence of a link between the manner in which the problem of trafficking is socially defined in practice, and the role of legal culture in shaping this link.

Lon Fuller, The Morality of Law

2015 ◽  
Author(s):  
Frank Lovett
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Law School ◽  
Legal Positivism ◽  
Social Scientists ◽  
The Rule Of Law ◽  
Wide Range ◽  
The Law

This chapter reviews The Morality of Law, by Lon L. Fuller, one of the most important books in jurisprudence published in the twentieth century. Fuller offers an account of the rule of law and its connection to morality that has influenced not only legal philosophers, but also a wide range of political theorists and social scientists. This chapter provides some background that led to the publication of The Morality of Law, considering in particular Fuller’s response to Hart’s lecture on legal positivism, delivered in 1956 at the Harvard Law School. It also discusses the publication of The Morality of Law in 1964 and its description of eight “principles of legality”: generality, promulgation, no retroactive laws, clarity, no contradictions, no laws requiring the impossible, constancy of the law through time, and congruence between the official action and declared rule.

ON PRACTICES AND THE LAW

Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 113-136 ◽  
Author(s):  
Mark Greenberg
Keyword(s):  
Legal Positivism ◽  
Philosophy Of Law ◽  
Social Facts ◽  
Motivational States ◽  
The Law ◽  
Legal Domain ◽  
Domain I ◽  
The Way

In a recent paper, “How Facts Make Law,” I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I callrational determination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains.

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