When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as for instance (...) the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant the legal ramifications. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed. -/- Key words: Hobbes, civil law, common law, jurisprudence, ‘artificial reason’, natural law, sovereignty,. (shrink)
The article outlines some aspects of the civil law in Lithuania, an Eastern European country, which underwent an essential transformation in the last decades. The author outlines the development of the Lithuanian civil law from the oldest written sources up to the adoption of the new Civil Code of the Republic of Lithuania in 2000. The author is critical about the denomination of Lithuania as a “new” state and draws attention to the history of Lithuanian law, which (...) spans hundreds of years. The article emphasizes the continuity of the legal tradition and the heterogeneity of law – the coexisting of several legal systems in the territory of one state. The article discusses the role of Roman Law in the legal system of Lithuania. Even though Roman Law has never been applied in Lithuania, the author argues that it nevertheless had an indirect influence on Lithuanian private law. Roman Law and Canonical Law were among the main sources while drafting the three codified acts, the Statutes of Lithuania, in 1529, 1566 and 1588. The knowledge of Roman Law acquired by lawyers at universities in other European countries was transmitted through drafting of the laws and the jurisdictional and administrative practices. (shrink)
Changes in government policy over the last two decades have seen the traditional goals of criminal justice, namely prosecution and punishment, being replaced by an emphasis on prevention, fear reduction, security and harm reduction. During this time domestic abuse has gained a place on the political agenda, which has resulted in legislative initiatives in the form of civil protection orders across the U.K. which primarily focus on prevention but have also more recently begun to rely on the traditional criminal (...) justice responses should they fail to prevent further abuse. Drawing on international evaluations and a recent study conducted in Scotland (the Scottish study), the article examines whether legislation in the form of civil protection orders has the effect of curtailing the actions of abusers and if not, what occurs when the traditional criminal justice response comes into play. The strengths of civil protection orders and some explanations for the weaknesses of these orders are considered alongside the question of whether there is any value in women continuing to engage with the law in response to domestic abuse. (shrink)
In the "Ethics", Abelard discusses the example of a judge who knowingly convicts an innocent defendant. He claims that this judge does rightly when he punishes the innocent man to the full extent of the law. Yet this claim seems counterintuitive, and, at first glance, contrary to Abelard’s own ethical system. Nevertheless, I argue that Abelard’s ethical system cannot be viewed as completely subjective, since the rightness of an individual act of consent is grounded in objective standards established by God. (...) Likewise, any particular civil government must derive its authority objectively from the natural and/or Christian laws, which ground its possibility and function. In this paper, I examine Abelard’s explication of the natural law, discoverable through reason, and the divine laws, knowable only through revelation, in order to explore what form an adequate civil law would have to take under which the judge could be said to have acted rightly. (shrink)
This paper aims to clarify the nature and contents of 'civil ethics' and the source of the binding force of its obligations. This ethics should provide the criteria for evaluating the moral validity of social, legal and morally valid law. The article starts with observing that in morally pluralist Western societies civil ethics already exists, and has gradually started to play the role of guiding the law. It is argued that civil ethics should not be conceived as (...) 'civic morals' which is in fact rather 'state ethics', nor as 'public ethics' which is said to reach its perfection when it becomes law, nor as ethics applicable primarily to the basic structure of a society (political liberalism), but instead as a citizens' ethics. Subsequently the paper attempts to show what the contents of this ethics are, and which ethical theory would be able to ground its obligations. (shrink)
The aim of the article is to answer the question if accession can be maintained as a separate and independent mode of acquisition and loss of ownership in the Lithuanian civil law. Although this mode takes its beginning in the Roman law and is well-known in other European jurisdictions, the situation in Lithuania is less clear because the accession is almost totally absent from the legal texts of the Lithuanian positive civil law, court decisions and legal doctrine as (...) well. Thus, a legal analysis confined to the linguistic analysis of law would come to the conclusion that Lithuanian law functions without the accession. Nevertheless, a deeper analysis of the Lithuanian Civil Code and case law reveals a different view. To respond to the posed question, the article analyses the functions and the concept of accession as one of the aspects of a broader property law principle, namely, of unity. The essence of the latter is that one thing presupposes one right of ownership and it is inconceivable to hold several full ownerships into the same thing. In this respect, accession plays an important role protecting the legal interests of the third parties. Also, the application of accession in other continental European countries and the solutions proposed by the Draft Common Frame of Reference is analysed. Further, the analysis turns to the Lithuanian positive law and case law. In spite of the lack of express reference to the accession rule, careful analysis shows that, in fact, the accession rule is established in the Lithuanian Civil Code, albeit it could be found in various forms and in several different units of the Civil Code. Also, Lithuanian courts routinely apply the rules on accession in practice. Even more, the analysis shows that the Lithuanian Civil Code is not devoid of the rules of accession, but, on the opposite, this legal institute is over-regulated and, in part, incoherent. This quality can be explained as a consequence of an imprecise legal drafting. The final conclusion is drawn that accession is a separate and fully working legal institute of Lithuanian civil law, although to reach its coherent application a certain interpretative position should be adopted. (shrink)
Drawing extensively on Bentham's unpublished civil and distributive law writings, classical and recent Bentham scholarship, and contemporary work in moral and political philosophy, Kelly here presents the first full-length exposition and sympathetic defense of Bentham's unique utilitarian theory of justice. Kelly shows how Bentham developed a moderate welfare-state liberal theory of justice with egalitarian leanings, the aim of which was to secure the material and political conditions of each citizen's pursuit of the good life in cooperation with each other. (...) A striking and original addition to the growing literature on Bentham's legal and political thought, this incisive study also makes a valuable contribution to contemporary political philosophy. (shrink)
Perhaps more than most professions, law depends on a corpus of specialized terms of art that are familiar to the practitioners who use them regularly in legal contexts but less familiar to lay people. Apart from the importance of enhancing transparency and public access for a key domain, making legal terms understandable to non-professionals may be crucial when non-professionals are involved in legal processes, such as civil litigation. However, simplifying terms risks changing their meaning, while explaining them in plain (...) language entails the difficulty of assessing how much of the legal content lay people need or are prepared to know. An initial step to making legalese more understandable to non-lawyers is to evaluate what lay people actually understand by the terms they come across, and so this study compared the responses of lay participants when asked about key terms form the Japanese Civil Code with the definitions and explanations given by a legal expert. One of the key findings that emerged was that there is particular difficulty with terms that lay people have some understanding of because of their use in non-legal contexts. It will be argued that supplying some background in legal theory would help facilitate educating the public about the legal meaning of terms. (shrink)
The penetration process of structures traditionally assigned to civil law into administrative law, especially administrative law aiming environmental protection, has been more noticeable through recent years. This process resulted in deepening the absence of a clear separation of private law norms from public law norms. It led to the existence of so-called quasi civil solutions, which can be found for example in the Act on prevention from damages in environment and its repair. Their specificity consists in the fact (...) that they cannot be regarded as civil law structures due to the differences between them and the civil law structures. This legal status sets new challenges for legal theorists as well as practition- ers. They concentrate on interpretation of administrative law provisions which were penetrated by civil law structures, taking into account differences between interpretation of administrative and civil law provisions. We should not reject specific character of the civil law provisions’ interpretation and interpret these provisions only by taking into account specificity of administrative law inter- pretation. Civil law institutions are characterized by a larger field for action, which is left for parties or performers, in comparison to the institutions of ad- ministrative law. This specificity of civil law structures should be considered as its advantage that should not be removed in the activities of public authorities. (shrink)
This paper provides an overview of the application of canon law to the administration of Catholic heahh care in the United States. It is divided into four sections. The first section provides a context for the role of canon law in the life of the Church. The second section considers the fundamental question of juridic personality in the Church. The third section delineates the predominant forms of organization that have hitherto been the main Church related institutions providing health care. The (...) fourth section considers the validity of the McGrath "independence" thesis conceming the continuing applicability of canon law to incorporated health care structures under U.S. civil law. The paper concludes with some practical considerations conceming the relationship between canon law and corporate structures. (shrink)
Biolaw is an autonomous interdisciplinary legal discipline, with great theoretical and practical relevance because of its possible social effects. This contribution deal with the most relevant different approaches to bioethical problems according to the main juridical systems, as they are civil law and common law. A main topic is also the relation between Biolaw, Bioethics and Biopolitics.
reminds us that reproductive medicine has become part of our social reality and as such justifies the intervention of public authorities. The Instruction suggests relevant principles which should guide appropriate legislation. This essay analyzes how far the French government has taken these fundamental principles into account. Keywords: IVF-ET, Donum Vitae , civil law, France CiteULike Connotea Del.icio.us What's this?
On 30 June 2005, the Spanish Parliament approved Law 13/2005, which amends the Civil Code to permit same-sex marriage. This formal equality measure put Spain in the spotlight of the international media. It is the culmination of a series of developments spanning from the last years of the Franco regime (which ended in 1975), through the enactment of anti-discrimination measures in 1995, to the recent fight for kinship recognition. It also follows a recent shift, from 1998 to 2005, towards (...) the enactment of same-sex partnership laws at regional level, the approval of same-sex marriage and finally, the approval of a ‹gender identity law’ (2007). This legislative note assesses the context in which the new law on same-sex marriage has been enacted. I argue that although same-sex marriage has been represented by many activists and politicians in Spain as a gender neutral contract, it has the potential for differential impacts on lesbians and gay men, and further research and debates are needed in this area. (shrink)
Engineers have a greater responsibility than many other professionals not to commit civil disobedience in performing their jobs as engineers. It does not follow that engineers have no responsibility for their company’s actions. Morally, engineer may be required to speak out within the company or even publicly against her company. An engineer may be required to work on a project or quit her job. None of these acts, generally, are against the law. An engineer may be morally required to (...) commit civil disobedience as a private citizen. But, given the institutional character of engineering and the division of labor in the modern world, very rarely will conscience require an engineer to violate the law in the performance of her job as an engineer. (shrink)
In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the (...) enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)
The effects of the late civil strife have been to free the slave and make him a citizen. Yet he is not possessed of the civil rights which citizenship should carry with it. This is wrong, and should be corrected. To this correction I stand committed, so far as Executive influence can avail.
Between 1787, and the end of his life in 1832, Bentham turned his attention to the development and application of economic ideas and principles within the general structure of his legislative project. For seventeen years this interest was manifested through a number of books and pamphlets, most of which remained in manuscript form, that develop a distinctive approach to economic questions. Although Bentham was influenced by Adam Smith's An Inquiry into the Nature and Causes of the Wealth of Nations, he (...) neither adopted a Smithian vocabulary for addressing questions of economic principle and policy, nor did he accept many of the distinctive features of Smith's economic theory. One consequence of this was that Bentham played almost no part in the development of the emerging science of political economy in the early nineteenth century. The standard histories of economics all emphasize how little he contributed to the mainstream of late eighteenth and early nineteenth-century debate by concentrating attention on his utilitarianism and the psychology of hedonism on which it is premised. Others have argued that the calculating nature of his theory of practical reason reduced the whole legislative project to a crude attempt to apply economics to all aspects of social and political life. Put at its simplest this argument amounts to the erroneous claim that Bentham's science of legislation is reducible to the science of political economy. A different but equally dangerous error would be to argue that because Bentham's conception of the science of legislation comprehends all the basic forms of social relationships, there can be no science of political economy as there is no autonomous sphere of activity governed by the principles of economics. This approach is no doubt attractive from an historical point of view given that the major premise of this argument is true, and that many of Bentham's ‘economic’ arguments are couched in terms of his theory of legislation. Yet it fails to account for the undoubted importance of political economy within Bentham's writings, not just on finance, economic policy, colonies and preventive police, but also in other aspects of his utilitarian public policy such as prison reform, pauper management, and even constitutional reform. All of these works reflect a conception of political economy in its broadest terms. However, this conception of political economy differs in many respects from that of Bentham's contemporaries, and for this reason Bentham's distinctive approach to problems of economics and political economy has largely been misunderstood. (shrink)
This article comprises two case studies of a ``problem'' within the Anglo-Welsh legal process of jury trial. In that tradition, the judge not only instructs on the law to be applied by the jury, s/he also ``summarises'' the evidence after counsel have already done so. This summarising is largely unconstrained by appellate control. The ``problem'' that the two cases present is that they were trials of ``civil'' issues in which the subject matter is also categorised as ``criminal''. Where such (...) overlaps occur the relevant law is not easy nor clear. This can present difficulties for the judge, which may and in these cases were transmitted and amplified to the jury. In the first case study, the rhetorical direction of the judge's language are analysed. In the second, the language is analysed as a generator of confusion rather than direction. In both cases the outcome in the jury's verdict reflect the judicial language. Under current British law, investigation of the conversion process from judicial ``Summing-up'' through collective jury deliberation to verdict is illegal. (shrink)