Legal Theory - Science topic

A human right is under jus cogens. It is inalienable. It falls under the concept of erga omnes obligations which refers to specifically determined obligations that states have towards the international community as a whole. In this regard, to the right to life.

Where the right to life is also enshrined in the constitution, even where it is not, it therefore takes prominence to other rights such as the right to property

Altough my opinion can not be but an external point of view, because I am not immersed in the culture of the South Asian countries, nor have I had experienced their history, I agree what Montserrat Gas-Aixendri wrote: «The changes should depend more on the fact that the laws are not adequate to reality, than on whether they come from a colonial government».

In Latin America, where I live and work, even when some figures (still on force) descends clearely from Roman Law, our legal systems were not precisely inherited from those ruling in the times of european empire's domination, but imported from codes, institutions and political arrangements conceived under the strong influence of liberal ideals, also brought from Europe in the times of French Revolution and intensfied with the example given by the United States' Independence. Probably, we could regard them as colonial inheritance, but they have been well assimilated in our political culture and our legal thinking.

Nowadays, after two centuries, the same basic constructs support our normative frame and, even in the recognizion of the several ammendements operated time by time, globalization is impelling us to equate legal figures and procedures to those existent in developed countries, in order to attract business and investments. So, I think, there is a worldwide phenomenon concerning legislation: its tendency to be homologated.

Agriculture is a sea of opportunities, where the farm laws are helping to create digital opportunities. Digital agriculture requires data and skills to proceed so, it is developing at slow pace. Digital agriculture is sustainable tool but good things take time !

very good question

I concur to your point, that Art. 13 (3) eIDAS does not mean, that national law can supercede Art. 13 (1) and (2) or that they can be different from them.

Therefore (3) only regards the application of the burden proof in national law. I guess for example as to the meaning and application in court proceedings and rulings, possibility of shifts du to contract, obligation to disclose right toward consumer. 

I am not an expert on this subject.  But in the United States, one must have "standing" to sue under Article III of the Constitution. Generally this requires proof of (1) harm or injury to the person suing; (2) that the injury was a legally protected right; and (3) that the injury or harm resulted from the defendant's action.  A municipality in the U.S. is a subdivision of a State and so the right to sue would generally have to arise under a State Constitution (unless the individual were raising a federal claim). There is a federal statute, the False Claims Act where individuals may sue on behalf of the government if the individual believes the government has been harmed -- the citizen's "standing" to sue is generally based on the citizen's rights as a taxpayer.  Thus, if someone over charges the government for a hammer, it is my tax dollars that are being wasted so I can sue.  At the level of a municipality, a similar right to sue attaches as a state taxpayer under a State Constitution in many states.  For example, there was a case in Colorado where someone sued to stop abortions paid for with state dollars. I think they lost however because the government's right to provide healthcare over rode the citizen's interest in where their tax dollars went, but I don't actually remember exactly.  So the "standing" to sue is separate from the ability to win the lawsuit, which is the same elsewhere I suspect.

If I were smarter I could probably be more succinct.  You can see it would be a matter of looking up case law in 50 states + Or I could link a Supreme Court case the the False Claims Act if you like.

Cheers! Mary

Choice between good and bad in a given situation is the edge between human and AI from all points of view including legal.

Dear Grietje,

The most known Soviet scholars in criminal law were A.A. Piontkovskiy, N.D. Durmanov, P.S. Romashkin, A.N. Traynin, V.D. Men'shagin, M.D. Shargorodsky, B.S. Utevskiy. Next generation -  N.F Kuznetsova, M.I. Kovalev, G.A. Kriger, V.N. Kudriavtsev.

The book "Criminal Law. History of Legal Science" ( ed. by V.N. Kudriavtsev; Moscow: Nauka, 1978) is one of the useful source for names and ideas . Unfortunately the book is in Russian.

Best regards

S.

The question relies on the deep basis of the distinction, not on the specific legal situation of one and other set of damages. In that field, the difference can be exposed as follows: the actual damage is the monetary valuation of a disadvantage derived from a fact considered as true, and the damages for expected benefits are the monetary valuation of a disadvantage and a fact considered as probable.Shortly: there is an epistemological difference. Obviously, the determination of an event as "true" or "prbable" do not keep on, within the legal practice, the rules of the scientific knowledge which are familiar to standard epistemology, since the legal practice operates within a institutional framework. But, philosophically speaking, that is the essential difference between one and other set of damages. 

Have you looked at the microsociological pathway laid out by Goffmann et al which when taken in conjunction with the phenomenology of Schultz and analysing how people construct their identity of themselves, who they are and how their control frames their sense of daisen through Marlaeu Ponty? Such a topic would also demand a study of space and people interacting with each other at interpretative and phenomenological realms through the work of Garston Bachelard.

Dear Pier Giuseppe

Let me share with you just some general approaches.

1) I am not very fond to think in terms of "ontologies", just because it usually means immutable essences, and therefore also liable to absolute truths. Beyond that, I can understand the approach that seeks a deeper understanding of this problem.

2) the problem you pose is about the relationship between politics and law. Generally, it is assumed that politics and law are independent and excluding experiences. Under this assumption, of course, states of emergency mean a collapse of rule of law.

3) however, in my view, it should be seen from another perspective: in any case public power corresponds to the policy. The policy can be exerted in a wide range of possibilities: through brutal ways (war) or through more rational ways (under rule of law), including intermediate or mixed forms.

4) keeping this in mind, it allows us to remember that : (a) even under the rule of law, politics is present everywhere, it's only a matter of degree; this includes the case where a judge decides when it should make an exception to the general rule for reasons of inapplicability or reasons of equity (b) is always risked falling into less civilized ways of exercising power (c) even when politic power exerted by violent means (uncivilized), the expectations of legitimation of power -in today's world- compels rulers to respect -as much as possible- legal forms, or at least, to promise to do so. Therefore, I think that the states of exception are instances in which the holders of power whereas interpret that must resign certain legal forms for the benefit of desirable outcomes, including to satisfy public opinion, hoping to legitimize power. Naturally, the less intense the withdrawal of legal forms and the more credible its exceptionality , the greater chance of being accepted. In those terms, states of exception (emergency) can be interpreted even as been part of the experience of a (legal) civilized politics, perhaps to the least extent, or perhaps on the way to stop being so.

Otherwise, I agree with the theoretical references that mention our colleagues.

No theory of law is truly made obsolete by any later developments.  To some extent we are all positivists now–we believe in the value of and the primacy of written text in most circumstances.  But in another way we are all natural law adherents and advocates – the entire basis of international human rights and human rights more generally is premised on the understanding that certain rights attach to each person simply because of that person being human and because there are certain underlying "natural" truths about the nature of being human that cannot and must not be denied.

Philosophical explorations of the workings of the law and the underpinnings of it are valuable within their realm and for certain utilitarian purposes, but pushing any particular philosophical stance too far into practice can result in very strange and even evil results.  Law is a practical discipline with roots more in rhetoric than in theories of knowledge or morality.  All three are relevant, but law is far more a branch of rhetoric than it is the other two.

From my point of view, It is very difficult to study the sources of law without giving any relevance to the human culture and the human history. The law is usually linked to the problems of the society of any moment.

Great question. Maybe we can developed few solutions. Educate judges in behavioural science and psychology; provide them with handbooks about bounded rationality, will, self-interest, depletion of ego etc. Maybe something like that will help judges to use new insights from psychology during their judicial activity? 

I fear also a situation when experts will be judges of facts. It means when they will de facto decide whether someone is guilty; and judges without knowledge will have no tools to asses expert's testimony (whether it is pure science or maybe expert's interpretation or idee fixe).

Dear Marcin,

thanks for a lively and very interesting discussion.

The use of the term "justify" brings focus to a crucial point. I do not think that I am justified (or not justified) in calling the trunk ugly. In contemplating the "external" I believe we must resist the danger of equating ascription conditions with metaphysics. While I reject a purely internalist perspective on the concept of ugliness, I yet do not think that such an attribute or property is real in the sense of a naturalist ontology (that is, that ugliness is "out there", independent of a perceiver). For there to be a justification, there would have to exist a causal chain, or at least a chain of reasons, which runs from the (external) object in question to my (internal) experience. But as I remarked in footnote [1] in my first reply, no such chain is available to us. Thus, an ontological externalism does not seem feasible to me. (This does not mean that there is no external world, only that the infamous notion of a "thing-in-itself" is unintelligible.)

If classical externalist ontologies and internal/external dichotomies are defective, where does that leave us? What about an epistemological externalism? You write:

As you point out, ascription conditions can only work within a normative context. Without such a context we could not understand each other since language would have nothing to latch on to. However, there is a difference between general and legal meaning, because legal meaning is, similar to mathematics, a matter of creating a technical system of concepts on top of our ordinary language. In other words, the law can be learned by understanding definitions and the relations between them (I know I'm greatly oversimplifying, but it is only this aspect which I need here). This stands in contrast to ordinary language which is acquired in practice as we grow up and learn to cope with the world. Definitions are of no use (yet). Nonetheless, when we learn our ordinary practices together with our ordinary language(s), a normative context is created within which we can communicate. A silent and unreflected background comes into existence, against which we make our (ordinary) judgements. Later we augment our abilities by introducing the technical languages of science, mathematics, law, and other categories. We do well to remember that any understanding of technical language depends on ordinary language and that this bond can never be relinquished (a botanist can never forget what a tree is, even though "tree" is not a term in botany and you need to know what a river, a valley and a mountain is before you can engage in the science of geography).

In view of the above, one may say that reference works differently in ordinary and in legal language. It is a difference in kind, not in degree. In both cases we evaluate against a normative background, but in the legal context the background is rationally created using definitions, while the background of ordinary language is human life itself, with no systematically conceived layers or theoretical frameworks inbetween speech and action. Intension, as you point out, indeed occurs in both cases and cannot be used to differentate between the two.

To summarize, I think that the externalism you have in mind does not work as a general theory of meaning, but may yet be successful within the confines of the law. The reasons for this would be:

We can "absorb" the subjective into the objective within legal systems, since these must be designed to not have to essentially rely on the subjective: all reference in legal contexts must be of a publicly accessible type, as opposed to internalised experience. Markus Frischhut gives an example in his reply ("Recital 7 ... fundamental ethical choices ..."). His emphasis of "fruitful" takes us away from essences of meaning (or the appearance of them) to applications and definitions of terms relative to what our goals are. Thus the focus shifts from searching for meaning ("behind" the words we use) to creating it through responsible action. An externalist analysis would then amount to examining how we act (thereby creating meaning) in our applications of "equality", "justice", etc., where "application" refers to human action, as opposed to internal, formal, linguistic relations.

I certainly agree with respect to universals and the analysis of meaning, but not so much about the notion of "ugly" or "red" summarizing experiences. The meaning of a word lies in its use. I cannot use "red" to explain or justify my experiences. "Red" is (partly) constitutive of my ability to express my experience of colour perception. Our use of "red", "ugly", etc. creates a logical (linguistic) space within which we can meet to talk about what we perceive. We agree or disagree not within language but in way of life (words construed as "pointers to reality" cannot create agreement or disagreement, we also have to live a little to achieve that). Reference and meaning do not occur with respect to the internal rules of a language, but by applying language, to use a Wittgenstein dictum, "within the stream of life".

Kind regards,

Chris

The definition of murder is not based on malice aforethought. While malice aforethought may help prove a reason why the murder occurred but is not required for a conviction. There must be the act of killing someone and the intent to do so. Furthermore, many states also have a category called Felony Murder where if certain violent crimes are committed and during the crime any person other than the felon(s) is killed, the criminals are subject to the same penalties as an intentional murder, Therefore intent to kill does not have to be proven. Rather, the intent to commit one of the included crimes must be proved,

Ronald Dworkin briefly (but quite positively) discusses Sartre in Justice for Hedgehogs, at 210 and (especially) 231.

Hi Pedro,

Are you talking about the liability of the Board of Directors of a publicly traded company? If you are talking about a company with public stockholders, then the Directors are fiduciaries -- not agents. And the cause of action would be a derivative lawsuit on behalf of the wronged corporation, which lawsuit would be filed by the shareholders/investors ( i.e., the absentee owners of the corporation).

The managers of the day-to-day activities of the company are the agents; that is to say, they are in an agency relationship with the shareholders for whom they are supposed to be managing the business. If the foregoing are the relationships you are talking about, then in what role is the "commercial company" suing? Is it a shareholder?

Please give me more details so that I can take a stab at answering your questions from the standpoint of which entities are in the role of would-be plaintiffs. Also, if the prospective defendants are actually the managers of a publicly traded company, one must be certain that the "mismanagement" alleged does not fall into the area of the "business judgment" rule. Because if it does, it will be hard to make a case for a Common Law tort such as negligence. For the "mis-manager" to be held liable, one would need to show gross negligence, total incompetence, self-dealing or fraud.

Gwen

Nikole,

Oy.... You're going to have to get a bit more specific! With that said, Ross Matsueda's work is the best in this area over the long term. With respect to more recent work, see Dana Haynie - really interesting social network stuff. Really, though, this literature is HUGE...

Hope this helps. (like the post if it does.)

Best,

Brad Myrstol