Questions related to Legal Theory
The South Asian legal systems are still bearing colonial heritage of the British Indian empire inside its important laws. Basic laws in the field of evidence law, civil procedure, criminal procedure, penal law, contract law, personal law and so many other fields. Larger portion of these legislations are based on either the principles of Roman Law, Common law.
Most of these outdated and socially irrelevant laws are causing severe damage to the judicial systems and the societies. Complex laws are creating case-backlogs, laws with socially irrelevant remedy and lack of deterrance in punishments are creating social disorder.
Moreover, from a jurisprudential perspective, we can not expect a portion of victorian age legal system to be applied into some modern heterogenous societies having high opportunity of socio-economic prosperity.
Most of the current laws within this sphere were designed before the rapid progress of digital agriculture and therefore they can be interpreted differently. Most of the farmers using benefits of digital agriculture are concerned about data use (or theft) since they are no ICT experts and the data can be used for various reasons. Is it really a data theft then, since some of that data could (and should?) be used by the local (of national) agriculture authorities to monitor the agricultural process or production of the farmer (in case of governmental incentives)? For what else can it be used in that case? What if the software is freeware as a part of the agricultural incentives for farmers? To what level the farmer should be informed about it since there is no possibility to guarantee what will happen with that data in practice?
How do you see the advancement of the law in this field? How do you assess the current situation? Let me know what do you think.
The ICJ Statute in art. 38 (1) defines sources of international law. One of these are:
" international conventions, whether general or particular... "
What do you understand under "general conventions". Is there difference between general conventions and general customs? What is the reason for differentiation between general and particular conventions?
I am especially interested in the meaning of these presumptions regardin electronic seals an timestamps in UK and Irish Law.
Do they shift the burden of proof?
What kind evidence has to be presented to rebut them?
Are they in effect more like prima facie evidence or is their power of persuasion higher?
Can somebody point me to work on this topic or more general informations on statutory presumptions that might be applicable here?
In Belgium, a citizen can sue on behalf of the municipality he lives in and the municipal government (mayor and aldermen, those who normally decide over starting a suit or not) cannot prevent the individual of suing on behalf of the municpality.
It resembles the qui tam procedure known in the U.S.A. When the suit is lost, the suing individual must pay, when he wins, the gains from the suit flow to the municipality.
In Belgium it's mostly used in environmental lawsuits (non-pecuniary injunctions) because those suits can only be started by the municipality and not an individual.
Similar procedures existed until 1966 in the Netherlands and still exist in France and Luxembourg, apparently all three modeled after the Belgian example (law of 1836).
In France and Luxembourg however, the indivudual needs the approval of his action by the administrative court (France) or the national government (Luxembourg).
Does such a procedure also exist in other countries?
Primary legal sources:
- Belgium: Loi communale / Gemeentewet, art. 271 (1988 version, still valid in the Brussels region, originally art. 150 of the 1836 law)
- Flanders: Gemeentedecreet, art. 194
- Wallonia: Code de la démocratie locale et de la décentralisation, art. L1242-2
- France: Code général des Collectivités Territoriales, art. L 2132-5 (originally art. 49.3 of the 1837 law)
- Luxembourg: Loi communale, art. 85 (originally art. 107 of the 1843 law)
- Netherlands: Gemeentewet, art. 143.3 in original 1851 version, art. 177.3 in 1966 when abolished
What to do you think, in case of future possibility of creating artificial intelligence which will be like ours, where will be the edge (in a legal point of view) between human being and the robot with artificial intellect?
I know of many great Marxist criminologists but no legal scholars working on criminal law from an explicitly Marxist perspective. I am interested in Marxist theoretical analysis of the form & content of criminal law.
I have seen increased scholarship calling into question the default rule that expectation damages be awarded for a contract default. I am more convinced this is a legitimate question (although it is certainly not the prevailing law I have seen.) A tort seems to be at least as worthy of compensation to the injured as does the innocent party in a contractual contest. Yet, in tort, you are awarded your actual damages. In contract, actual damages would be what we usually call "reliance damages." We award reliance damages when it is difficult to measure expectation damages. Why is it not the other way around? Why not, instead, award reliance damages generally and expectation damages when reliance damages are difficult to determine? Can anyone point me to the most recent literature on this debate? It is a question both old and new, and I'd like to see what is the state of the art is on it. Also, feel free to state your own opinion on the matter. Thanks.
It is likely that theoretical explanations around social conformity and deviance can be usefully tested through reference to information on criminal law enforcement by professionalised police. Eg Hart and Kelsen, eg, relate conceptually the 'rule of recognition' and Pure Theory to the level of official concrete decision-making. It would appear that comparative police data is relevant for supporting and testing theoretical frameworks. In turn, it would be interesting to be able to assess experience of policing by consent by correlating to broader theoretical narratives - eg poststructuralist and interpretivist theories.
I mean: in a state of exception all legal categories collapse, and at the end of day the same act can deserve a medal or be deemed high treason. In this way it represents, according to me, a pure political world, where the law is suspended.
From my viewpoint the law is to a large extent an ontology, a weaponed ontology, establishing the things composing the stuff of the world : goods, persons, properties, absolute rights, agreements, deeds, covenants, contracts, and so on.
Then it seems to me that a pure political state has no ontology, and as such is completely shapeless, and it works only through decision and mobilisation.
This would also be practically important in the US constitutional law, since the Supreme Court maintains that a "political question" can not be justiciable.
As such the nature of the political seems to lie outside the law in a realm of pure ontological ambiguity where all things get confused, precisely at the opposite of a world governed by the rule of law, which needs, first of all, a fixed social ontology to establish its own domain.
Is such a sharp opposition between the legal and the political, in ontological terms, sustainable or not ? And where it can bring us to?
Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are. (Soper, "Legal Positivism", Cambridge Dictionary of Philosophy)
In his book Law's Empire Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. (Ronald Dworkin, Law's Empire (1986) Harvard University Press)
On 30 September 2010 the Ukrainian Constitutional Court ruled upon the unconstitutionality of the Constitutional amendments made by Yushchenko. Whereas there are several comments available in Ukrainian (which I understand), I do not find any discussions upon the topic in any other language (as they might reflect a different point of view), apart from the statement of the Venice Commission (http://www.venice.coe.int/docs/2010/CDL-AD%282010%29044-e.pdf).
I searched Google Scholar and all I find are translated newspaper articles (i.e. the ones by ME Sharpe).
As I am updating an article from 2009, such articles would be very helpful!
Thank you in advance!
This is a really simple, and yet profound question. Is there a point to study the sources of law without giving any thoughts to anthropological studies (i.e. Malinowski among others) carried out among the wild tribes? Can we really, sitting behind our desks, discover the nature and 'pedigree' of regal rules?
Psychology is developing with dizzying pace. Almost every day psychologists discover a new fact about human cognition, emotion, behavior etc. Can we ask questions about rule-following behavior without any reference to psychological studies? Can legal theorists study law and do not take a psychological perspective (among others, I agree)? Can we discuss a relation between law and morality and at the same time ignore studies conducted in moral or evolutionary psychology?
Is this development of psychology a chance for legal studies or a threat to the very nature of research on law?
Semantic externalists, like Kripke and Putnam, famously argued that the reference of natural kind terms can be explained without analysing the internal mental states of speakers. Those terms refer to whatever happens to have a certain nature or structure that the instances of natural kinds share, i.e. the reference is defined by conditions that are external to our mind. Do you think that the externalist approach can explain the reference of non-natural kind terms? Putnam suggested that the externalist approach can be extended to artifacts, like pencils. But can we explain the reference of theoretical or abstract terms in the same way? I am a lawyer, so I would like to analyse the meaning of the words like "proportionality", "justice" or "equality" in an externalist way. Is it viable?
JF Stephen once remarked that the degree of moral loathing of the offence of murder is a reflection of the fact that murderers are hanged for the offence. That reflection has interesting implications for jurisdictions which abandon mandatory penalties for murder.
French philosopher Jean-Paul Sartre was a severe critic of liberal democracy and electoral politics. Even though Sartre drafted a new constitution for a postwar France (according to his biographer Annie Cohen-Solal), his philosophy challenges the idea of constitutionalism and civil law, which is largely accepted as a fundamental necessity for the creation and maintenance of a modern democratic society. How has European / Anglo-American constitutional law responded to existentialism? Has the field of Western legal theory / studies engaged with Sartre on any level? Which law journals would be the best to search through? Are there any relevant databases that I could search?
The realization of the budgets to be viabilize torts vary by event type harmful as the active subject that provokes so. A manager of a company that civil liability should take? A commercial company may sue for damages caused by mismanagement of the agency?