What is a Court of Law?

2019 ◽  
Author(s):  
Denise Meyerson
Keyword(s):  
Explanatory Power ◽  
The Other ◽  
Legal Philosophy ◽  
Paradigm Case ◽  
Case Methodology ◽  
Central Case ◽  
Limited Degree ◽  
The Law ◽  
Do So

What is the nature of a court? In this article I argue that we need to know what a court is supposed to do in order to understand what it is. I argue against two conceptions of a court which I call ‘minimalist’ and ‘essentialist’. The former holds that a court is simply a body empowered to make binding resolutions of disputes by applying existing laws. I argue that this conception is incomplete. The latter identifies further essential features of courts, such as the use of fair processes. I argue that the essentialist conception lacks explanatory power. Drawing on the central case methodology in legal philosophy, I introduce a conception that I call the ‘paradigm case conception’. I argue that paradigm courts are not merely empowered to apply the law but equipped to do so, by virtue of possessing features that assist them to resolve legal disputes accurately and effectively (ie, with the public’s acceptance). Courts that do not possess all of these features or possess them to a limited degree are not ‘non-courts’ but defective courts. I explain why the paradigm case conception is theoretically and practically superior to the other conceptions.

The Limits of Consent and the Law of Assault

2011 ◽  
Vol 24 (1) ◽  
pp. 205-223 ◽  
Author(s):  
Hamish Stewart
Keyword(s):  
The Other ◽  
Legal Philosophy ◽  
Physical Interaction ◽  
Space And Time ◽  
Positive Law ◽  
The Law ◽  
Usual Rule ◽  
Freedom Of Action

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but thebody– the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.

Comparative Jurisprudence as Scholarship and Profile of Education

2019 ◽  
pp. 49
Author(s):  
CSABA VARGA
Keyword(s):  
Explanatory Power ◽  
The Self ◽  
The Other ◽  
Strict Sense ◽  
Individual Feature ◽  
Knowing That ◽  
Legal Statement ◽  
The Law ◽  
Culture Tradition

Our thoughts are products of our culture, tradition, and ideal of order, so their understanding and development can only be based upon them. However, cultures, traditions and ideals vary from time to time and from people to people, as each of them has been created and developed to respond to challenges under their own conditions. Consequently, they are not only independent of each other in their genesis, but are also incommensurable in their historical set, which equals to saying that they are not even classifiable but only taxonomisable in a strict sense. Each of us lives and interprets his own world: when we compare, we attempt at putting them in a common hat, knowing that no one can go beyond the symbolic paradox of “I interpret your culture through my culture”. A way out from this trap can only result from their individual parallel characterisation after we have built up some kind of abstract philosophical universality from the ideals of order concerned. Then, in the context of the Self and of You, we are expected not only to explain the Other, but also to recognise it by its own right. In its due course, legal comparison aims at getting knowledge not only of ‘law in books’ and ‘law in action’ but about what is meant by law when it works in our mind. Therefore, beyond the mere act of taking cognisance, comparison comprises also the acceptance of this Other by its own right, in which none is simply reduced to anything purely factual (“what is the law?”), but the actuality of the entire normative process leading to a legal statement (“how do we think in law?”) is considered. Getting to know foreign laws begins with grouping of laws and, as expressed in legal families, by combining those which are similar while contrasting the dissimilar. Interaction and mixing amongst them is a natural sequel, but their establishment cannot be a substitute to the didactic necessity and explanatory power of analysis in term of legal families. When describing them, mere contrasting shall be consummated by presenting the specific ingenuity of each of them as a characteristic individual feature specific to them.

The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?

2007 ◽  
Vol 22 (3) ◽  
pp. 383-424 ◽  
Author(s):  
Robin Churchill
Keyword(s):  
The Other ◽  
Third Party ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Fish Stocks ◽  
Comprehensive Survey ◽  
The Law ◽  
The One ◽  
Fisheries Law ◽  
Do So

AbstractThis paper provides a comprehensive survey of all matters related to the jurisprudence of the International Tribunal for the Law of the Sea relating to fisheries. An overview of the main provisions of the LOSC on the matter serves as an introduction. The author then expounds on the scope of the Tribunal's jurisdiction relating to fisheries in great detail while differentiating between its jurisdiction to deal with the substance of fisheries disputes on the one hand and provisional measures as well as prompt release orders on the other hand. He concludes that while the Tribunal theoretically has jurisdiction to deal with fisheries disputes not only arising from the LOSC and the UN Fish Stocks Agreement but also from over 20 other treaties, it has so far rarely been called on to do so. Nevertheless, the Tribunal has made a not insignificant impact on international fisheries law. This becomes obvious in the course of the following analysis of its jurisprudence on these matters. Before turning towards his final remarks, the author considers the prospects for the development of the Tribunal's fisheries jurisprudence. He concludes that it is difficult to predict the extent to which the Tribunal may be asked to resolve fisheries disputes and thus given an opportunity to develop its jurisprudence, but points out both that States have historically been reluctant to refer fisheries disputes to binding third-party settlement and that there are considerable jurisdictional obstacles to the Tribunal hearing fisheries disputes.

scholarly journals Kontroversi Hukum Islam Kontemporer (Kajian terhadap Aborsi di Bawah Kehamilan 4 Bulan)

2016 ◽  
Vol 12 (2) ◽  
pp. 307
Author(s):  
A. Markarma Yusup
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Islamic Law ◽  
Medical Science ◽  
Close Relation ◽  
The Other ◽  
Reproductive Life ◽  
The Law ◽  
The One ◽  
Do So

Discussing the controversy of contemporary Islamic law on abortion, especially under four months of pregnancy, it is always interesting to be discussed. Especially if it is associated with the medical science, the law enforcement and human rights. The law seems to be difficult to touch this matter, then it is compounded with suspected of hiding the practice of abortion in the name of health care. Regardless of the question of whether abortion do so on the basis of health considerations alone or indeed do so on the basis of other reasons, but nonetheless deaths from abortion is very worrying. Abortion was close relation to human rights on the one hand because every woman is entitled to her live a healthy reproductive life, but on the other side of the fetus in the mother's womb are also entitled to live and thrive. Two of these are reaping the benefit of debate among scholars. Some scholars allow and forbid others to submit their respective arguments

19. Duties of Ex-employees

2020 ◽  
pp. 485-504
Author(s):  
Astra Emir
Keyword(s):  
The Other ◽  
Trade Secrets ◽  
Confidential Information ◽  
Knowledge And Skills ◽  
Delicate Balance ◽  
Other Hand ◽  
The Law ◽  
The One ◽  
Restraint Of Trade ◽  
Do So

This chapter considers the duties of ex-employees, ie the obligations which apply to an employee who is about to leave his employment (whether voluntarily or otherwise), or who has actually left that employment. The law must strike a delicate balance. On the one hand, an employee has a right to earn his living, and knowledge and skills obtained in his former employment will doubtless enable him to continue to do so; on the other hand, an employer is entitled to limited protection against an employee who may well be seeking to compete. It includes garden leave, trade secrets and confidential information, restraint of trade and working for competitors.

scholarly journals La libération de la caution par la faute du créancier

2005 ◽  
Vol 28 (4) ◽  
pp. 939-962
Author(s):  
Louise Poudrier-LeBel
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Bad Faith ◽  
General Duty ◽  
On Demand ◽  
Economic Context ◽  
The Supreme Court ◽  
Standards Of Conduct ◽  
The Law ◽  
Do So

Since the decision of the Supreme Court in Soucisse, a growing number of sureties try to obtain their liberation by invoking a fault of the creditor. This phenomenon occurs in the province of Quebec as in the other provinces of Canada. This paper relates mostly to the Quebec Law. The sureties plead a fault in information about the nature or the consequences of their contract or about the risks and circumstances of the operation. The author writes that such a general duty of information does not exist, except if the creditor has been contractually engaged to do so. Nevertheless, if the creditor gives wrong information with bad faith, he will be held liable. Secondly, the sureties invoke the recall of the loan. Here again, there is no fault on the creditor's part, if the term is arrived or if a reasonable notice has been given when the debt is payable on demand. But if the creditor has promised that he would not recall his loan for a certain period, he must do so. Thirdly, the sureties invoke a fault in the realization of the securities for a low price. The courts will ascertain whether the sale has been held in accordance with prescriptions of the law for this type of security. If the creditor sells privatly, the courts do not hold him liable if the price obtained is justified within the economic context. In case of a fault in the realization of the securities, an action on liability belongs to the principal, the company, and not to the surety, the shareholder, a victim by ricochet, except if the goods are his own. Nevertheless if the surety is sued, he may oppose a fin denon-recevoir. The burden of the proof of the fault will be more or less easy according to the circumstances of the case. Most often, an exoneration clause will deny liability except in the case of bad faith. In the absence of such a clause, the criterium is that of a reasonable man. Sureties must also prove the amount of the prejudice. Recent amendments to the Bank Act and to the Act respecting Bills of lading, Receipts and Transferts of property in stock impose new standards of conduct on the creditor and will offer more protection to sureties.

19. Duties of Ex-employees

2018 ◽  
Author(s):  
Astra Emir
Keyword(s):  
The Other ◽  
Trade Secrets ◽  
Confidential Information ◽  
Knowledge And Skills ◽  
Delicate Balance ◽  
Other Hand ◽  
The Law ◽  
The One ◽  
Restraint Of Trade ◽  
Do So

This chapter considers the duties of ex-employees, ie the obligations which apply to an employee who is about to leave his employment (whether voluntarily or otherwise), or who has actually left that employment. The law must strike a delicate balance. On the one hand, an employee has a right to earn his living, and knowledge and skills obtained in his former employment will doubtless enable him to continue to do so; on the other hand, an employer is entitled to limited protection against an employee who may well be seeking to compete. It includes garden leave, trade secrets and confidential information, restraint of trade and working for competitors.

On the Tyranny of the Law

1983 ◽  
Vol 18 (3-4) ◽  
pp. 327-347 ◽  
Author(s):  
Bernard S. Jackson
Keyword(s):  
Extreme Points ◽  
History Of Ideas ◽  
The Other ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Single Spectrum ◽  
Basic Issue ◽  
History Of ◽  
The Law ◽  
The Concept Of Law

As 1984 approaches, Orwell's vision throws its forward shadow over our perception of our situation. No one ever doubted that law could be made an instrument of tyranny. But there are aspects of1984which prompt us to ask whether even the concept of law does not itself constitute a social problem, specifically a deprivation of certain freedoms which in other contexts we value. I shall not be concerned with the extent to which thecontentof particular legal systems tyrannise their subjects. Rather, my concern is with the ways in which law, by virtue of itsformalnature, deprives the subjects of a legal system of freedom. So considered, there are two quite distinct accusations of tyranny which may be levelled at the law: one is so-called “legalism”, which may be regarded as a tyranny of the (intellectual) right; the other is existentialism, viewed as a tyranny of the (intellectual) left. I shall suggest that these two tyrannies in fact represent extreme points on a single spectrum, and that this spectrum may be observed not only in the operation of legal systems, but also in legal philosophy and indeed in theology. In fact, the parallels between legal philosophy and theology may be taken to reflect different (but not historically unrelated) modes of address of the same basic issue in the history of ideas.

Precedents

1943 ◽  
Vol 8 (2) ◽  
pp. 118-145 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Common Law ◽  
The Other ◽  
Brute Force ◽  
University Of Toronto ◽  
Free Spirit ◽  
History Of ◽  
English Speaking ◽  
The Common ◽  
The Law ◽  
Do So

It may seem odd at a crisis like this in the history of the empire and of mankind to be thinking and writing of academic questions of law, but the Editor has asked me to contribute an article to the University of Toronto Law Journal as a token of the sympathy and fellow-feeling of lawyers on both sides of the Atlantic. I am glad to be able to comply with his request and I do so also as a token of appreciation of the noble efforts that Canada is making for the cause which is so dear to the hearts of all of us. What Canada is doing is also being done by the other sister nations of the empire—the great Dominions—the colonies and India. All are united not by material or formal bonds, but by ties of kindred and by a common devotion to the cause of the free spirit and dignity of man, of the supremacy of law over tyranny, treachery, and brute force. The common law which binds together the English-speaking countries has been well called the law of the free peoples. We are confident that the forces of evil are ephemeral compared with that law. We can without impropriety forget for a brief space the pressing evils and dwell a little on that which will survive them, the common law.

Law, Morality, Art, the Works

2018 ◽  
Author(s):  
Kevin Toh
Keyword(s):  
Legal System ◽  
Correct Answer ◽  
The Other ◽  
Legal Philosophy ◽  
Plausible Answer ◽  
Fundamental Law ◽  
The Law ◽  
In Virtue Of

(i) What is the law on such-and-such? (ii) What is the most fundamental law of a particular legal system? (iii) In virtue of what is a certain rule the most fundamental law of a particular legal system? And (iv) what facts need to exist in a community of people for that community to have laws? According to the orthodox position in contemporary Anglophone legal philosophy, the correct answer to (iv) would enumerate only certain behavioral and psychological facts, and these facts would be those in virtue of which the other three questions are ultimately answered. In reaction to this orthodoxy, this chapter argues that a very plausible answer to (iv) would be neutral in its implications for (i)–(iii), and, further argues that contents of laws are unlikely to be determined solely by what legal officials or others think and do.

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