This paper critically reviews the judgment of the United States Court of Appeals for the Ninth Circuit In re: Jayson Reynoso: Frankfort Digital Services et al., v. Sara L. Kistler, United States Trustee et al. (2007) 447 F.3d 1117. The appellants, who were non-lawyers, were indicted with unauthorised practice of law for offering bankruptcy petition services via online legal software or expert systems in law configured for filing bankruptcy petition forms. The United States Court of Appeals for the Ninth (...) Circuit found inter alia that appellants were bankruptcy petition preparers, and not being lawyers, had exceeded their clerical remit by offering legal advice and legal services in contravention of California law regulating legal practice and 11 U.S.C. Sect. 110 of the Bankruptcy Code (2002). While examining the legal ramifications of the use of legal software by non-lawyers in the preparation of legal documents, the paper critically reviews the factual circumstances of the Reynoso decision in the context of juridical and statutory constructs of unauthorised practice of law in the United States. The paper poses the question whether Reynoso should be viewed as a one-off decision bound by its peculiar facts, or good law for the broad proposition that non-lawyers cannot use legal software in legal documents preparation. The paper also notes the possible legal barriers to an unconditional ban on the design, sale, distribution, and uses of legal software by non-lawyers. These range from the First Amendment right to free speech, constitutional right to pro se legal representation, interstate commerce doctrine, to antitrust provisions of the Sherman Act. A regime of best practices for the use of legal software or expert systems in law by non-lawyers is proffered. (shrink)
_Despite advances in standard of living of the population, the condition of widows and divorced women remains deplorable in society. The situation is worse in developing nations with their unique social, cultural and economic milieu, which at times ignores the basic human rights of this vulnerable section of society. A gap exists in life expectancies of men and women in both developing and developed nations. This, coupled with greater remarriage rates in men, ensures that the number of widows continues to (...) exceed that of widowers. Moreover, with women becoming more educated, economically independent and aware of their rights, divorce rates are increasing along with associated psychological ramifications. The fact that widowed/divorced women suffer from varying psychological stressors is often ignored. It has been concluded in various studies that such stressors could be harbingers of psychiatric illnesses (e.g., depression, anxiety, substance dependence), and hence should be taken into account by treating physicians, social workers and others who come to the aid of such women. A change in mindset of the society is required before these women get their rightful place, for which a strong will is needed in the minds of the people, and in law-governing bodies._. (shrink)
Using interviews and group discussions, researchers and students from the Free University of Berlin and psychological practitioners work together in a project called 'The Analysis of PsychologicalPractice', theoretically based on 'Critical Psychology'. The aim is to find out whether and how practitioners deal with the contradictions between experimental-statistical orientation of traditional academic psychology and the single-case-orientation of psychologicalpractice. Can practitioners relate to 'scientific' psychology at all? How do they deal with the contradiction that (...)psychological practitioners are expected to cure psychological problems without having the possibility to change objective conditions with reference to which alone psychological problems are understandable? How are 'official' academic or clinical theories and individual or team-related experiences combined? What can we learn from the explication and development of a 'social-subjective knowledge of the context and contradictions' of professional practitioners of psychology? We discuss theoretical foundations and problems in the empirical development of the project, and resent - from our workshop - three examples or dimensions of our work: life problems, problems of and alternatives to traditional diagnostics, and common sense normative ideas in the guise of psychological theories. (shrink)
In recent years there has been a marked increase in interest in animal welfare issues worldwide. This subject often evokes extreme points of view, and can be both intellectually challenging and emotionally dividing. It is undeniably a field where substantial progress has taken place, with a multitude of countries worldwide implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of (...) animal welfare legislation. To highlight a variety of these promising and noteworthy ideas this article outlines and examines some selected and qualified aspects of a potential juridical approach to the subject by consulting the legal systems of Austria and Germany under this particular premise. The aim will be to ascertain the extent to which animals have been granted consideration and protection, for instance in spheres of Constitutional or Civil Law. What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be established? Ideally, a complete legal network on all possible levels of the legal system should be developed, ensuring a comprehensive and an all-embracing protection of the individual animal. (shrink)
The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two aspects (...) of the NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)
The application of semiotics in trade mark law is an interdisciplinary endeavour in its infancy. The author traces its genesis in recent years and situates it within the context of general theoretical approaches, in particular of an interdisciplinary kind, appearing in the trade mark law literature in the past. The purposes for which such theories are applied, and questions of methodology arising from this, are examined. In particular, it is observed that semiotic theory has, by and large, been used for (...) the purpose of debating legal policy in trade mark law (especially in the United States), and that this has given rise to argument about the extent to which semiotic theory can exert any normative force of its own upon the law. This article offers a different perspective. It is sought to demonstrate the usefulness of theoretical semiotics in solving trade mark law questions in practice. The author emphasises that this involves no threat to orthodox legal problem-solving methodology (whatever one may think of the orthodoxy), and in particular does not require the normative use of semiotic theory. Taking as a starting point the concept of ‹trade mark use’, and having regard to trade mark law and literature in Europe, the United States and Australia, the author proceeds to demonstrate the proposed approach by reference to some current problems in trade mark infringement. (shrink)
The proliferation of electronic databases is raising someimportant questions about how the evolving access to new or previously inaccessible information is likely to change the practice of law. This paper discusses TRAC, an interesting electronic source of previously inaccessible information that is currently used by members of the media, public interest groups, lawyers, and the federal government. Summaries, reports, and snapshots of TRAC's data can be accessed through a series of public web sites. TRAC's subscription service allows users access (...) to the data warehouse and data mining tools (see http://tracfed.syr.edu/info.html for more information). Additionally the paper examines how AI can be employed to assist for the legal profession in utilization of TRAC's data. Finally, it speculates about how TRAC and other new electronic data sources may impact the practice of law. (shrink)
It is proposed that psychologists need a working theory of knowledge for conceptual and discourse purposes. Arguments are made from a pragmatist view of science for a conception of inquiry practice that may resolve current paradigm conflicts and support a viable methodological pluralism. The suggestion is made that a naturalized approach to research practice, such as historical-descriptive case study, may illuminate the judgments and intentions constitutive of our applied epistemology and methodological choices. Implications of such meta-methodological understanding for (...) research training and a contingent theory of knowledge for psychological science are discussed. (shrink)
David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)
The aim of this article is to investigate the problem how and to what extent human rights affect the relationships between private parties and what consequences this effect has for the development of private law in Lithuania and other European countries. Because Lithuanian legal doctrine lacks relevant research on this subject-matter, the author seeks to start and invoke the beginning of conceptual academic discourse on the matter. It is argued that despite the fact that in many countries the impact (whether (...) direct or indirect) of human rights on private law has recently become a powerful means of developing the law, the application of human rights in private law has not only its positive side but it also invokes very serious problems to be solved and raises conceptual questions that should be answered. Thus, in order to ensure stable, reliable and respectable development of influence of human rights on private law as a beneficial tool to protect human rights in certain cases, there is a need for continuous, complex and multi-level academic conceptual comparative studies of the issue in order to answer how to reconcile the constitutionalisation of private law with the principles of legal certainty and proportionality and what are the criteria for the limits of the effect of human rights on private law in order to ensure a fair balance, protect stability and predictability in law. (shrink)
The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as well as possible solutions (...) to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)
Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modiﬁcations to Bratman’s own explanation. Bratman describes his own theory as (...) a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the diﬀerences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)
(2012). In Response to “Revisiting Blumberg's ‘The Practice of Law As A Confidence Game’” by Professor Gilbert Geis. Criminal Justice Ethics: Vol. 31, No. 1, pp. 39-41. doi: 10.1080/0731129X.2012.657508.
The history of ethical problems and corruption in American law enforcement is well documented. Current law enforcement training lacks a significant focus on ethics training and is in need of modifications which would include a greater emphasis on ethics education. This study drew on cognitive development theory, applied specifically to the domains of moral and conceptual development, to create and implement an educational programme for police officer trainees and college students studying criminal justice. The Deliberate Psychological Education model provided (...) the framework for this educational program designed to promote development of moral reasoning and conceptual complexity among the participants. Significant gains were achieved for participants in the Deliberate Psychological Education intervention when compared with a control group in which the participants received the ethics training in a more traditional lecture format. (shrink)
The use of foreign law by national courts when deciding cases that concern fundamental rights has provoked a debate on the legitimacy of the judiciary to resort to this practice. Indeed, many arguments have been made by legal scholars to support the proposition that judges should not take account of unincorporated international human rights instruments or the decisions of foreign courts when they decide cases that concern fundamental rights. This article puts these arguments to scrutiny, and discusses whether this (...) judicial practice should be resorted to. (shrink)
Abstract In a 1967 article that is considered a classic of criminal justice scholarship, Abraham Blumberg portrayed defense attorneys for accused offenders as more responsive to the demands of the court entourage for smooth and expeditious functioning than to the needs of their clients for a stalwart representation. The article suggests that Blumberg's view, while provocative and with a considerable element of accuracy, may have reflected a somewhat jaundiced and overstated perspective when he was on the verge of leaving law (...)practice for academia. The article also speculates about the current accuracy of Blumberg's observations. (shrink)
Initial reflections on ethics, morality, and justice in an adversary system -- Undertaking a case -- Communication and confidentiality -- Loyalties and conflicts of interest -- Who controls the case? How should lawyers and clients share decisionmaking? -- What price truth? What price justice? What price advocacy? -- Tactics, free speech, and playing by the rules -- The special problems of the government lawyer -- The lawyer acting as advisor -- The lawyer as part of the law firm structure -- (...) Mental health, substance abuse, and the realities of modern practice -- The economics of lawyering -- Admissions, discipline, and some other rules of lawyering. (shrink)
Background The aim of the study is to assess the knowledge, attitudes and practices among healthcare professionals in Barbados in relation to healthcare ethics and law in an attempt to assist in guiding their professional conduct and aid in curriculum development. Methods A self-administered structured questionnaire about knowledge of healthcare ethics, law and the role of an Ethics Committee in the healthcare system was devised, tested and distributed to all levels of staff at the Queen Elizabeth Hospital in Barbados (a (...) tertiary care teaching hospital) during April and May 2003. Results The paper analyses 159 responses from doctors and nurses comprising junior doctors, consultants, staff nurses and sisters-in-charge. The frequency with which the respondents encountered ethical or legal problems varied widely from 'daily' to 'yearly'. 52% of senior medical staff and 20% of senior nursing staff knew little of the law pertinent to their work. 11% of the doctors did not know the contents of the Hippocratic Oath whilst a quarter of nurses did not know the Nurses Code. Nuremberg Code and Helsinki Code were known only to a few individuals. 29% of doctors and 37% of nurses had no knowledge of an existing hospital ethics committee. Physicians had a stronger opinion than nurses regarding practice of ethics such as adherence to patients' wishes, confidentiality, paternalism, consent for procedures and treating violent/non-compliant patients (p = 0.01) Conclusion The study highlights the need to identify professionals in the workforce who appear to be indifferent to ethical and legal issues, to devise means to sensitize them to these issues and appropriately training them. (shrink)
In spite of the fact that it is required only occasionally for sanitary reasons and not legally mandatory, the practice of embalming is widespread in contemporary American society. This study explores the historical, cultural and psychological factors which gave rise to the practice of embalming and why the practice continues. Two case studies are presented in which delayed grief reactions were present; linkages with embalming are described. It is suggested that the frightening finitude of the self (...) and a fear of death in modern society have led to practices in which the corpse is viewed as looking natural, thus denying the reality of death. Embalming is seen as the final assault on the self, which can also carry with it problematic psychological consequences for the survivors. (shrink)
Bijural services as factors of production -- Commentary A on Breton and Salmon -- Commentary B on Breton and Salmon -- The challenge of incomplete law and how different legal systems respond -- Commentary C on Pistor and Xu -- Commentary D on Pistor and Xu -- Coevolution as an influence in the development of legal systems -- Commentary E on Breton and Des Ormeaux -- Commentary F on Breton and Des Ormeaux -- The demand for bijurally trained Canadian lawyers (...) -- Commentary G on Davis and Trebilcock -- Commentary H on Davis and Trebilcock. (shrink)
THE ESSAY IS A REPLY TO NORMAN BOWIE'S EARLIER ARTICLE "ASPECTS OF KANT'S PHILOSOPHY OF LAW" IN THE "FORUM" (VOL. II, 4). CONTRARY TO BOWIE, I CONTEND THAT THE NATURAL LAW ELEMENTS PREDOMINATE IN KANT'S PHILOSOPHY OF LAW. THE CITIZEN CONFRONTED BY A CIVIL LAW THAT RUNS COUNTER TO THE MORAL LAW HAS ALTERNATIVES OTHER THAN REBELLION. HE CAN (1) SEEK REFORM OF THE LAW, (2) OFFER 'NEGATIVE RESISTANCE' TO THE LAW, OR (3) 'AVOID SOCIETY ALTOGETHER'-BREAK THE SOCIAL CONTRACT.
Translation science is going through a preliminary stage of self-definition. Jakobson’s essay “On linguistic aspects of translation”, whose title is re-echoed in the title of this article, despite the linguistic approach suggested, opened, in 1959, the study of translation to disciplines other than linguistics, semiotics to start with. Many developments in the semiotics of translation — particularly Torop’s theory of total translation — take their cue from the celebrated category “intersemiotic translation or transmutation” outlined in that 1959 article. I (...) intend to outline here the contributions that the science of translation — following a semiotic perspective opened by Peirce and continued by Torop — can gather from another discipline: psychology. The “totalistic” approach to translation provided by Torop can be more deeply enforced by applying to it the consequences deriving from the psychological insight offered by the concept of “interpretant” as mental sign; the perceptual interpretation of the prototext; reading and writing as intersemiotic translation processes; unlimited semiosis as interminable analysis; primary and secondary process in dreams and in other kinds of translation; metaphor and disambiguation as mental processes; the defenses activated when translation criticism (review) and self-criticism (revision) are made. (shrink)
This article theorizes the contemporary government of psychological life as neo-liberal enterprise. By drawing on Foucauldian critical social theory, it argues that the constellations of power identified with the psy-function and neo-liberal governmentality can be read through the problematic of everyday practice. On a theoretical level, this involves a re-examination of the notion of dispositif, to uncover the dynamic, ambivalent and temporal practices by which subjectification takes place. Empirically, this point is illustrated through a reflection of one case (...) of neo-liberal psychological life: life coaching. (shrink)
What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry.
The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the first 3.192 Article (...) paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct. (shrink)
The development of in vitro fertilisation (IVF) as a treatment for human infertilty was among the most controversial medical achievements of the modern era. In Ireland, the fate and status of supranumary (non-transferred) embryos derived from IVF brings challenges both for clinical practice and public health policy because there is no judicial or legislative framework in place to address the medical, scientific, or ethical uncertainties. Complex legal issues exist regarding informed consent and ownership of embryos, particularly the use of (...) non-transferred embryos if a couple separates or divorces. But since case law is only beginning to emerge from outside Ireland and because legislation on IVF and human embryo status is entirely absent here, this matter is poised to raise contractual, constitutional and property law issues at the highest level. Our analysis examines this medico-legal challenge in an Irish context, and summarises key decisions on this issue rendered from other jurisdictions. The contractual issues raised by the Roche case regarding informed consent and the implications the initial judgment may have for future disputes over embryos are also discussed. Our research also considers a putative Constitutional 'right to procreate' and the implications EU law may have for an Irish case concerning the fate of frozen embryos. Since current Medical Council guidelines are insufficient to ensure appropriate regulation of the advanced reproductive technologies in Ireland, the report of the Commission on Assisted Human Reproduction is most likely to influence embryo custody disputes. Public policy requires the establishment and implementation of a more comprehensive legislative framework within which assisted reproductive medical services are offered. (shrink)
In an interdependent world of overlapping political memberships and identities, states and democratic citizens face difficult choices in responding to large-scale migration and the related question of who ought to have access to citizenship. In an influential attempt to provide a normative framework for a more just global order, The Law of Peoples , John Rawls is curiously silent regarding what his framework would mean for the politics of migration. In this piece, I consider the complications Rawls’s inattention to these (...) issues creates for his broader vision of global justice. Yet I also attempt to show how these aspects of Rawls’s theory emerge from an underlying tension which confronts all liberal democratic conceptions of justice, both in theory and in practice. In my conclusion, I sketch an alternative rooted in the insights of agonistic pluralism, which “breaks” the Rawlsian silence and actively theorizes the democratic legitimation of political borders. (shrink)
An extensive survey by Heathcote et al. (in press) found that the Law of Practice is closer to an exponential than a power form. We show that this result is hard to obtain for models using leaky competitive units when practice affects only the input, but that it can be accommodated when practice affects shunting self-excitation.
In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...) simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)
This article reflects on the received view of the rupture which constitutes the beginning of a critical, ethical, political and legal opening, the understanding of which inhabits the cry of, and response to, injustice. It takes the very critique that feeds into, and is distorted by, practical reasoning, as its point of departure. Grasping this rupture as the complementary relation between deconstruction and radical alterity, would entail unreflectively accepting a certain kind of truthfulness—truthfulness as [in]correctness, manifesting in a relationship that (...) involves rootless and controlling movement of making and unmaking of world. In closely reading Wittgenstein and Heidegger on the level of seeing, showing and saying, truthfulness is shown to contain an essential tension between, on the one hand, the Socratic, metaphysically-bound notion of beingness, correctness and meaning-steering and, on the other hand, the pre-Socratic notion of unconcealment (a-lethia), which, pointing even earlier than pre-Socratics into aboriginality, involves attentive letting of gliding in the inexpressible saying of language. While steering is about generating new possibilities of expressibility, gliding is about poetic dwelling, or enduring inexpressibility as a constitutive part of saying. Although aletheia is taken to be the key influence on rootless post-foundational thinking, it is argued that unconcealment involves letting and enduring the presencing inexpressibility of place and home-coming, that is, worlding-rootedness; thus showing Heidegger’s originary politics as the district of the uncanny to be about worlding that attentively lets the presencing inexpressibility of earth be as place. In reading Heidegger’s views on humanism, beginning and language, the argument links inexpressibility—essentially and historically—to the grasping of the belongingness together of world, earth and place, viewing this belongingness as key to both the saying of art and of mortals dwelling together temporally, spatially, materially in a manner always strange to, and nearer than, the steering/controlling of beingness, time, space and place that the very gesture and emergence of critique is captive of and is not capable of attuning to and capturing. Art always estranges the metaphysical cycle of correctness which preserves pain and suffering—a cycle that inhabits a double bind of responding to violence and injustice generated by the violence of metaphysics with metaphysical violence and justice. In showing essential strife within truthfulness itself, Heidegger points to even greater and earlier problematic than the pre-Socratics—to the painful core of inexpressibility between the ontology of steering time, spaces and material—steering places—and the gliding temporality, spatiality and materiality of ontology of place. (shrink)
We review different studies of the Periodic Law and the set of chemical elements from a mathematical point of view. This discussion covers the first attempts made in the 19th century up to the present day. Mathematics employed to study the periodic system includes number theory, information theory, order theory, set theory and topology. Each theory used shows that it is possible to provide the Periodic Law with a mathematical structure. We also show that it is possible to study the (...) chemical elements taking advantage of their phenomenological properties, and that it is not always necessary to reduce the concept of chemical elements to the quantum atomic concept to be able to find interpretations for the Periodic Law. Finally, a connection is noted between the lengths of the periods of the Periodic Law and the philosophical Pythagorean doctrine. (shrink)
The article presents an interpretation of certain aspects of John Dewey’s psychological works. The interpretation aims to show that Dewey’s framework speaks directly to certain problems that the discipline of psychology faces today. In particular the reflexive problem, the fact that psychology as an array of discursive practices has served to constitute forms of human subjectivity in Western cultures. Psychology has served to produce or transform its subject-matter. It is shown first that Dewey was aware of the reflexive (...) problem, and found that it needed to be addressed. Next, three concepts of Dewey’s psychology are drawn in: subjectivity, habit and morality. Dewey is interpreted as articulating what we today would call a practice-orientated approach to psychology, in which moral and practical reasoning is seen as a dimension of all knowledge and action. Subjectivity is understood as a function emerging with complex interaction. Finally, a Deweyan approach to how psychology and other social sciences can cope with, and make positive use of, the reflexive problem, is outlined. By acknowledging their existence in the world they study, i.e. by becoming moral sciences that realize their moral and political implications, the social sciences can become problem-solving instruments that serve to help create a democratic public, a community as an actual social idea. It is pointed out that Dewey had an attractive view both of psychology – the subject-matter and of Psychology – the discipline and its practices – and ventured on the rare attempt at explicating how they are connected in what he called Great Societies, what we today would call post- or late-modernity, and how Psychology can help to constitute Great Communities in which human beings might flourish. (shrink)
The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it (...) as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. -/- Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)
Current literature suggests that the adversarial legal system may undergo some changes or may even be transformed by a recent influx of women lawyers into the profession. Such research indicates that women may approach ethical problems differently than men. This paper examines the responses of family law lawyers in Vancouver, British Columbia and the surrounding Lower Mainland to a hypothetical case which requires an assessment of professional responsibilities in light of potential conflicts in personal moral values.
The paper outlines Schutz’s phenomenology of law in the context of the transformation of positivistic practices in a post-totalitarian society. His major contribution is seen in the disentanglement of social phenomena from any form of naturalness by incorporating the dimension of meaning and interpretation into them. This philosophical gesture is made possible by renouncing any theory of transcendent ground(s) of a pre-formed order (Section 1) and leads to an interpretive concept of law, in which the reciprocity of perspectives play the (...) major role. The conclusions are pointing toward a phenomenological concept of law able to take our freedom seriously. (shrink)
The object of this research is the law created and enforced by different selfgoverning institutions such as the Church, the town, province and village communities in Lithuania in the Middle Ages. The author examines what was the contribution of this law to the realization of the law-governed state model in the Grand Duchy of Lithuania. The author believes that this problem can be viewed through the prism of the competition of these communities and their law with the aristocratic Lithuanian state (...) and the law created and ruled by noblemen. This aspect is not considered in the known scientific studies. Pluralism of law is highly preferable as an idea and in practice in law-governed states, because some regress of this conception in one community can be compensated by a progress in any other community. The author thus aimed to advance the hypothesis that favourable conditions for the law-governed state conception in Lithuania in the Middle Ages potentially existed. (shrink)
The collection of Malayalam records entitled Vanjeri Grandhavari, taken from the archives of an important Namputiri Brahmin family and the temple under its leadership, provides some long-awaited information regarding a wide range of legal activities in late medieval Kerala. The organization of law and the jurisprudence represented by these records bear an unmistakable similarity to legal ideas found in dharmastra texts. A thorough comparison of the records and relevant dharma texts shows that landholding Namputiri Brahmins, who possessed enormous political and (...) economic power in the region, mediated the implementation of dharmastra into the legal system. From this comparison arise new understandings of law and legal categories such as custom and positive law. Moreover, such comparisons begin to elucidate the problems involved in Western assumptions that it is textual law, not its interpretation and application by humans, which controls behavior. The Vanjeri records demonstrate not only the importance of dharmastra as a historical document but also the manner and extent to which dharmastra provided the foundation for legal systems in Kerala as well as in other regions of India. (shrink)
Can there be a theory of law? -- Two views of the nature of the theory of law : a partial comparison -- On the nature of law -- The problem of authority : revisiting the service conception -- About morality and the nature of law -- Incorporation by law -- Reasoning with rules -- Why interpret? -- Interpretation without retrieval -- Intention in interpretation -- Interpretation : pluralism and innovation -- On the authority and interpretation of constitutions : some (...) preliminaries -- Postema on law's autonomy and public practical reasons : a critical comment. (shrink)
The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question, namely whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises, regarding moral rightness under (...) uncertainty, the nature of law and the moral significance of law, entail a positive answer to this question. Specifically, I consider this argument: (1) one (subjective) sense of moral rightness depends on the (epistemically justified) belief of the agent concerning a non-moral fact that is morally significant; (2) a law is (partly) a non-moral fact; (3) a legal fact might be morally significant; (4) therefore an action that is compatible with an applicable moral standard, in light of the mistaken (justified) belief of the agent concerning a morally significant law, is (subjectively) right or less wrongful; (5) the (subjective) moral rightness of an action counts against criminal liability for this action; (6) therefore an action that is compatible with the applicable moral standard, in light of the mistaken (epistemically justified) belief of the agent, counts against criminal liability for the action if the law is morally significant. (shrink)
In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)