The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as after adopting (...) the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

The Labour Code of the Republic of Lithuania was enacted on 4 June 2002. However, the practice of ten years has shown that even the systematisation of this branch of law by means of codification could not help avoiding gaps in labour law. The Lithuanian labour law system balances on the brink of flexibility, liberalisation and stability. The purpose of this article is to examine the legal side of this problem and to evaluate the quality of legal regulation of (...) labour relations, also to propose instruments and means to improve them. The main aim of the article is to show the difference between gaps in labour law and some similar (contiguous) legal phenomena that will also be discussed in the article. (shrink)

THIS ESSAY ARGUES AGAINST LEGAL, POLITICAL, AND ETHICAL JUSTIFICAtions for torture. In the expository sections of the essay, I juxtapose international prohibitions against torture with the current U.S. administration's justifications for harsh interrogation methods on the basis of military necessity and presidential prerogative. I examine the systematic and individual causes of the specific abuses at Abu Ghraib that were tantamount to torture. In the constructive sections of the essay, I retrieve the evolving standards of decency from Supreme Court cases (...) and jus cogens peremptory norms from international law. I contend that torture is deontologically wrong and that the administration's arguments on solely teleological grounds are ethically flawed and contradictory. Engaging numerous interlocutors in law, philosophy, and Christian ethics, I reconceptualize the rule of law in terms of moral vision and an emerging moral consensus, and I hold that these terms provide a more adequate framework for evaluating and repudiating the practice of torture. (shrink)

This book provides a variety of diverse perspectives related to the ethics of anger, some more analytical in nature, others focused on practical issues, some in defense of anger, and others arguing against its necessity. This book is an essential resource for scholars who want to reflect critically on the place of anger in contemporary life.

The recent Lithuanian court practice shows discrepancies in cases dealing with partitioning of common partial divided property. Moreover, no doctrinal research has been concluded on the limits and conditions of the co-owners‘ right to demand that his share should be partitioned from the common partial ownership in Lithuania. Taking into account that proper implementation of co-ownership rights is based on common agreement of co-owners, when no agreement is reached between co-owners regarding the fact and the mode of partitioning, (...) a question arises on what conditions and to what extent the co-owner is free to implement his right to demand partitioning of his share from the common partial ownership. The research on historical developments of the partition law in different European countries shows that the co-owner’s right to partition is based on the idea of pluralistic conception of the modern property law objects. The authors of this article argue that this conception allows the co-owner to enjoy the right to dispose of his share in the common ownership as a separate object of civil turnover at his own volition and without the other co-owner’s consent. However, the right to partition is not absolute and is limited by the rights of the other co-owner to his share of the same property, so the right to partition may be implemented only following the proportionality and interest balance between the co-owners. (shrink)

In tribute to the philosophy of Bat-Ami Bar On, this article draws upon her Arendtian analysis of fascism to explore recent dynamics of ethnic nationalism in the US. Whereas Bar On analyzed the problem of citizen-soldiers, this study extends analysis toward the citizen culture-soldier, suggesting that recent dynamics in the US are suggestive of a Cultural Revolution that threatens the inclusive practice of citizenship required of democracy. Bar On’s work motivates philosophers to not be lulled into acceptance of anti-democratic (...) practices of citizenship. The values of respect, equality, and equity suggest that another form of citizenship should be practically pursued. (shrink)

This article analyses the ethics of how community engagement and dialogue as applied by a mining corporation in Chile led to erosion of the community’s psychological freedom despite being aligned with best practice. This article details how a mining company squeezed the psychological freedom of the community in order to obtain an agreement between the period of 2000 and 2016. The findings focus particularly on a 9-month period between 2015 and 2016 when the company undertook intense community engagement. The (...) article identifies six corporate action phases undertaken which curtailed the community’s psychological freedom as paying off local leaders; challenging via courts of law; co-opting community lawyers; prohibiting a key debate during dialogue; and remaining silent after failing to honour its own self-imposed rule. The findings label the company’s community engagement as contradictory; while it conducted transitional and transformational engagement in formal spaces, it also engaged in unethical strategies in the informal spaces of community engagement. The result was overall community consent and an even more fragmented community. This article finds that when it limits the psychological freedom of participants, who are already divided as a group, corporate–community engagement can be viewed as ethically problematic. Based on analysis of the literature and an empirical case analysis, this article contributes a test for assessing the ethics of CCE. (shrink)

The notion of reasonable interpretation of legal texts, as opposed to the absurd or unacceptable interpretation, is presupposed in different legal theories as the fundamental basis of legal rationality and as a clear limitation to chaotic behaviour by courts. This article argues that the ever-present notion of reasonability is not a useful descriptive tool for understanding legal practices or how legal institutions work. The article builds on radical legal realism perspective in order to develop two arguments supporting this claim. First, (...) it argues that, from an empirical point of view, the complexity of contemporary law and its multiple layers of normativity do not allow for the description of what a reasonable interpretation is, since no coherent universal interpretative community can be envisioned. Second, from a conceptual point of view, it argues that describing the references interpreters make to reasonability as references to a semantic object—that is, to some kind of universal “reasonableness”, a model of reasonable behaviour or rationality—is not a reliable way of understanding judicial practice in a certain legal context. This is the case because, as an internal justification discourse, the appeal to reasonability by the interpreter has no bearing on truth or correctness. Nothing prevents courts from cherry-picking a meaning for reasonability in each case, using it as the justification to solve similar cases in different, sometimes contradictory ways. In short, the concept of reasonability cannot be taken, in itself, as an instrument of legal analysis. As a prescriptive discourse, it can merely be one of the objects legal science intends to observe and explain. Its discursive functions—not its semantic references—, as part of a strategy to convince and to justify, are the only observable elements that can sustain a coherent falsifiable description by legal science. (shrink)

What happens when men and women feel powerful in intimate relationships? When does power corrupt and when does it lead to positive consequences, such as increased sensitivity to others' needs, personal growth, and social responsibility? This book offers anyone interested in such questions a clear and accessible depiction of the effects of social power, based on cutting-edge theory and research. The book starts with a general discussion on the ways power influences individuals. The role of one's personality, goals, and culture (...) seem to play a decisive role in whether power leads to benevolent or malevolent consequences. Some effects of power are more intuitively understood (e.g., taking from or contributing to a common resource, or aggressive responses in parents who feel powerless), while other effects regard much more surprising phenomena (e.g., self-fulfilling prophecies, stopping an annoying fan, or forgiveness for a transgression). Following the description of this social-psychological mechanism, The Power to Care discusses the cultural and developmental circumstances in which power is experienced. Culturally acquired gender-roles, experiencing racism, egoistic vs. altruistic motivations, and defensive tendencies - all influence what men and women want in intimate relationships, and the way power can motivate them to attain their goals. These circumstances may explain the gender differences found in the results of three experiments, described in Chapter 4. In these experiments, men and women in long-term, intimate relationships reacted differently to a temporary sense of power, in terms of their tendency to self-focus, take the perspective of others, and objectify their relationship partners.In the last section, The Power to Care discusses the seemingly contradictory beliefs of professionals and laymen alike, that power corrupts, but that the empowerment processes yields positive results. In this section, the role of power and empowerment processes is discussed, mainly in macro-level interventions, in intimate partner violence (for both victims and perpetrators), overcoming addiction, and in policy practice (e.g., in court verdicts regarding cases of post-divorce relocation of custodial parents). (shrink)

According to the general rule explaining apparent authority, if the behaviour of a principal gives reasonable grounds for the third party to think that the principal has appointed the other person to be his agent, contracts concluded by the third party in the principal’s name shall be binding on the principal, notwithstanding the fact that the agent was not authorised by the principal to conclude particular contracts. In the absence of evidence of apparent authority the agent shall have to redress (...) the damage incurred on a third party in cases where the third party was not aware, and was under no obligation to be aware, of circumstances that the person acted in other person’s name without their express authorisation or in excess of their authority. The principal shall be liable for actions of the apparent agent if the following three requirements are proven: words or conduct of the principal caused the impression of authority; third party could reasonably presume the existence of sufficient authority; third party acted in good faith. The third party’s legitimate expectations must be aligned with the principal’s will in order to apply the doctrine of apparent authority efficiently. (shrink)

This paper situates the data privacy debate in the context of what I call the death of the data subject. My central claim is that concept of a rights-bearing data subject is being pulled in two contradictory directions at once, and that simultaneous attention to these is necessary to understand and resist the extractive practices of the data industry. Specifically, it is necessary to treat the problems facing the data subject structurally, rather than by narrowly attempting to vindicate its (...) rights. On the one hand, the data industry argues that subjects of biometric identification lack legal standing to pursue claims in court, and Facebook recently denied that that its facial recognition software recognizes faces. On the other hand, industry takes consent to terms of service and arbitration clauses to create enforceable legal subject positions, while using promises of personalization to create a phenomenological subject that is unaware of the extent to which it is being manipulated. Data subjects thus have no legal existence when it is a matter of corporate liability, but legal accountability when it is a matter of their own liability. Successful reform should address the power asymmetries between individuals and data companies that enable this structural disempowerment. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.4 (2003) 330-352 [Access article in PDF] Liberal Irony, Rhetoric, and Feminist Thought: A Unifying Third Wave Feminist Theory Valerie R. Renegar School of Communication San Diego State University Stacey K. Sowards Department of Communication Studies California State University, San Bernardino The meanings of a feminist movement and feminism have changed significantly over the past hundred years. From the women's suffrage movement, to the Supreme (...) class='Hi'>Court decision in Roe v. Wade, to the 1980s label "feminazi," feminist theories and movements have emphasized many different issues for a variety of reasons. In part, it is these differences that make identification with feminist principles and practices so difficult. As part of the new generation of feminists, we are often left wondering if we are good enough as feminists, if we do enough as activists, and what it is that we really stand for. Many of us have grown up with the benefits and the victories of the feminists in the second wave and feel a responsibility to continue to seek the end of oppression. However, our experiences as feminists and young women often leave us feeling angry, hopeless, and confused as to where we are supposed to go, how we are supposed to get there, and what battles we are supposed to wage as part of a feminist movement. Resolving these tensions and questions will allow us to better understand and articulate what it is that we want and need in a feminist theory. Recent and ongoing division within and among feminist movements and theories, lack of consensus, in-group fighting, and a focus on singular women's theories and issues have created problems and a lack of solidarity that is counterproductive to feminism as a whole."Third wave feminism" is a term used to describe feminists who were born in the 1960s and 1970s. Although not universally recognized as a discrete wave of feminism, the third wave is increasingly distinguishing itself in both popular culture and academic writing. 1 We believe that third wave feminism is an emerging movement that currently lacks an overarching or coherent philosophy of praxis. While this type of unifying philosophy is not necessarily required by a movement, we believe that the presence of such a theory, in the instance of third wave feminism, would be highly [End Page 330] beneficial since it could provide direction and explain the motives of young feminists who are still in the process of developing and defining their feminist beliefs and actions. Often the philosophy of a movement is not apparent until the movement is well established or has accomplished its goals. Third wave feminists, however, are in a unique position to simultaneously create and embrace a coherent philosophy while developing their feminist ideas and practices. In this essay, we argue that Richard Rorty's notion of liberal irony, as interpreted by third wave feminist experience, is a coherent philosophy of thought and action that will center the emerging feminist movement and allow it to prosper.For us, a rhetorical theory constructed from Rorty's liberal irony and pragmatism, together with various third wave feminist theories, provides the sort of solution that addresses many of our concerns about the direction of feminist theory. Rorty's philosophy of liberal ironism is compelling but has received scant attention from feminist or rhetorical theorists. A few feminist philosophers have examined a pragmatist feminism, but have largely focused on the early pragmatists, ignoring Rorty's liberal ironism entirely or discussing it only in the larger context of pragmatism (Aboulafia 1993; Hart 1993; Leffers 1993; Pappas 1993; Rooney 1993; Shuler and Tate 2001; Seigfried 1996; Sullivan 2001; Upin 1993). Donna Haraway (1990), although not dealing directly with irony from a pragmatist perspective, notes that language politics are strongly associated with feminist struggles. She argues that feminists can utilize ironic methods to negotiate identities that "seem contradictory, partial, and strategic" (197). An ironic perspective recognizes the exclusion inherent in naming and allows contradictory fusions of identity to emerge. In this way, irony blurs the boundaries of language... (shrink)

Multiple viewpoints have been expressed regarding the principle nulla poena sine lege. Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain cases, (...) may have a detrimental effect on society. To determine the correct approach to nulla poena sine lege, the paper considers its history in continental criminal law and then analyses the principle theoretically. The examination reveals that two contradictory interests—the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment—cannot be completely ignored in practice. Therefore, the findings suggest a balancing between these interests and propose a way to achieve this compromise. (shrink)

Courting competency: nursing and the politics of performance in practiceNurses have long anguished over how best to assess performance in clinical practice. The ‘competency’ movement appears to have provided a solution to this problem. In this paper I undertake a ‘radical hermeneutic’ interrogation of the cultural text of clinical practice doubled with a poststructuralist interpretation of the literal text of the Australian competency project. Through this work I attempt to expose some of the deeply embedded assumptions that underwrite (...) the competency movement and amplify the problems posed by an uncritical appropriation of competency based training and assessment in nursing education. (shrink)

The Court of Appeals of Minnesota, in State v. Saunders ), held that the statutory offense of practicing medicine without a license was not unconstitutionally vague as applied to a claim involving a farmer who offered a home remedy to cure cancer. The court held that, although Minnesota Statute § 147.081 subd. 3 contains general language and undefined terms, the statute contains sufficient particularity to show ordinary persons what conduct is prohibited, and thereby passes the void-for-vagueness test. The (...) court stated that, according to the statute, while a person holding a license to practice medicine is permitted to engage in a broad range of conduct, those without that license are proscribed from engaging in that same range of conduct.The defendant, Mr. Saunders, a dairy farmer, claimed that he could cure ill people by injecting an ill person's blood into a cow and then feeding that person the cow's colostrum. (shrink)

The right-to-die debate has gone on for centuries, playing out most recently as a spectacle of protest surrounding figures such as Terry Schiavo. In _Deconstructing Dignity_, Scott Cutler Shershow offers a powerful new way of thinking about it philosophically. Focusing on the concepts of human dignity and the sanctity of life, he employs Derridean deconstruction to uncover self-contradictory and damaging assumptions that underlie both sides of the debate. Shershow examines texts from Cicero’s _De Officiis_ to Kant’s _Groundwork of the (...) Metaphysics of Morals_ to court decisions and religious declarations. Through them he reveals how arguments both supporting and denying the right to die undermine their own unconditional concepts of human dignity and the sanctity of life with a hidden conditional logic, one often tied to practical economic concerns and the scarcity or unequal distribution of medical resources. He goes on to examine the exceptional case of self-sacrifice, closing with a vision of a society—one whose conditions we are far from meeting—in which the debate can finally be resolved. A sophisticated analysis of a heated topic, _Deconstructing Dignity _is also a masterful example of deconstructionist methods at work. (shrink)

Unlike Hanafī jurists, most of the jurists maintain that qiyās is permissible (jāʿiz) for the origins (aṣl) in which the qiyās rule is invalid, including ruhsat (permission); kaffarah (expiation) and ḥadd (penalties). Shāfiʿī jurists, Imam al-Shāfiʿī and his followers like al-Juwaynī, argue that Hanafī jurists are contradictory since they apply qiyās in many cases despite their judgment that qiyās is invalid, and on the contrary they defend that these are derived from the literal interpretation techniques out of qiyās format. (...) Nevertheless, Shāfiʿī jurists persist that they rule on the qiyās applications through Islamic jurisprudence inference methods (istinbāt) such as Islamic juristic preference (istiḥsān), even beyond qiyās. In his sense of search effective cause: ʿilla (taʿlil), al-Juwaynī focuses on the proper meaning/suitability (munāsaba). He runs the mechanism of taʿlil even in the presence of the deepest proper meaning. He customizes the formulation of the suitability (munāsaba)/proper meaning for the origins in which the qiyās’ rule is invalid. Kaffarah and ḥadd consequently expand the validity area and minimize the restricted area for qiyās. Al-Juwaynī’s approach agrees to his rational personality as well as the value that he appreciates for qiyās. In this paper, the aim of study is to identify the borders and limitations of qiyās in al-Juwaynī’s thought with discussions about the disagreements between the jurists in the specified areas.Summary: As a general principle, devoting (taʿabbud) is the foundation for jurisprudence for al-Imām al-Shāfiʿī and reasoning (taʿaqqul/taʿlīl) for Abu Hanīfa. Despite this, Abu Hanīfa and Hanafī jurists consider non-qiyās foundations (ma’dul bih ‘anil-qiyās) including the quantified ordinances (muqaddarāt/taqdīrat) and ruhsat (permission) as well as kaffarah (expiation) and ḥadd (penalty) as the banned areas for the analogy (qiyās) and profess that qiyās cannot be applied in these areas. It may be contradictory that they state in one hand that the foundation of rulings is taʿaqqul, and on the other hand, bars the above-mentioned areas for qiyās. On the contrary to their general approach, Shāfiʿī jurists, in particular, argue that it is untrue to absolutely exclude use of analogy in those areas, which are rather open to qiyās. Al-Imām al-Shāfiʿī and one of his followers, al-Juwaynī, describe that Hanafī jurists’ applications do not jibe with their principles so that they do refer the inference methods (istinbāt) (e.g. juristic preference: istiḥsān), furthering qiyās although they take qiyās as illicit in kaffarah and ḥadd. However, Hanafī jurists defend that they are not in a contradiction, and indeed they do not apply qiyās in kaffarah and ḥadd and derive their illations mostly from textual implications (dalālah) that are mostly out of qiyās format such as tanqīh al-maʿnā (isolating ʿilla), istidlāl, and dalālah al-naṣṣ (inferred meaning). As understood from the relevant arguments, applying qiyās in these areas is directly associated with the issue of potentiality for “the analogy in reason.” The type of qiyās that Hanafī jurists consider illicit in kaffarah and ḥadd is the analogical actions made for the reasons. One of the most rationalist representatives of Shāfiʿī uṣūl, al-Juwaynī pronounces that the method to determine ʿilla (cause) is fundamentally the suitability (munāsaba) that can be defined as “rational compatibility.” In his opinion, the ratiocination (taʿlīl) is based on this suitability. According to him, the indications of qiyās will be clear or it becomes practicable even in the presence of low-level, implicit suitability. Al-Juwaynī considers that it is licit to apply the analogy for the kaffarah and ḥadd as well as the non-qiyās foundations, including ruhsat and muqaddarāt or taqdīrat, whether direct or explicit (i.e. the meaning of analogy: qiyās al-maʿnā) or indirect or implicit (i.e. the commonality of analogy: qiyās al-shabah). In this context, one of Juwayni’s concern is “the matter of inherence in textual sources such as naṣṣ or the Qur’ān and the Sunna),” corresponding to the area where the judgment is based on a specific reason by naṣṣ. For him, a number of reasonable meanings can be inferred in these areas when it is critiqued independent of the uttered words. But the inherence mentioned in the texts of naṣṣ, indicates to avoid the use of analogy for making a judgment. Al-Juwaynī asserts that some fractional elaborate or detailed meanings cannot be obtained for physical prayers and only a set of universal meanings can be imagined. He defines that it is permissible to compare the reasons of physical worshipping with each other when any suitable meaning is present. He considers that for the permissibility of qiyās in ruhsat, it is adequate to find a meaning suitable for the judgment, and besides, the commonality of analogy (qiyās al-shabah) is applicable in the area of muqaddarāt or taqdīrat. Nevertheless, a patient’s condition is similar to that of a traveller in terms of ruhsat for not fasting (ṣavm). In al-Juwaynī’s way of thinking, patients should act like travellers for ruhsat to shorten (qaṣr) the prayers (ṣalāh) due to “requiring” as a proper meaning. However, as mentioned by al-Juwaynī, there is a consensus (ʿijmā or ittifāq) on the fact that a patient cannot shorten his or her prayers. Due to this impediment, it is understood that the rule of shortening their prayers (ṣalāh) is permissible for travellers but not for patients (manʿ al-ʿijmā’).In criminal cases, the right of oath before the court is belonging to the defendant, whereas to the claimant in kasāme, an oath method in unidentified murders. Taking an oath from the claimant is merely inherent to the kasāme application. Al-Juwaynī states that this inherence is known by the principle of being inherent to each circumstance (iḥtisās bi-l hāl), and with this aspect, kasāme is a closed area for qiyās. According to al-Juwaynī, contracts are suitable for qiyās because they have conditions such as offers and agreements explicitly stating the quality and quantity, and mutual assent. He describes that these are the reasons unavailable for qiyās with respect to their characteristics. With this, the contracts are among the reasonable sources in one respect and the unreasonable in another respect. Consequently, al-Juwaynī suggests that the analogy loses its functionality or validity in a limited number of the closed areas for qiyās, which are the static devotional judgments (taʿabbud) having no proper meaning, direct or indirect, or explicit or implicit; the areas where the judgment is made inherent to a specific reason by the naṣṣ (ihtisās bi-l-nass) (as in the example that sacrificing a female goat at the age of less than one year is a specific judgment for Burde b. Niyār). The point leads to the judgment is made inherent to a specific reason by the principle of ihtisās bi-hāl; and banned ʿijmā issues (as in the example of ʿijmā that it is agreed on the fact that patients cannot shorten (qaṣr) their prayers (ṣalāh), unlike travellers. Al-Juwaynī sees the application of qiyās as licit based on the availability of suitable meaning in all areas except for the above-mentioned issues. That he minimizes the closed areas for qiyās and widely expands the functionality of analogy is the reflections of the value that he gives to qiyās. (shrink)

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, as well (...) as the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

According to their standardized treatment within the Indian legal tradition, ordeals are supposed to occur, under certain circumstances, when one person formally accused another of some crime in a court of law. While not disputing the general accuracy of this standardized treatment of ordeals, this article argues for the widespread practice in pre-modern India of another—hitherto unrecognized—type of ordeal that fails to fit this basic scenario, for such ordeals would occur when someone was widely believed to have committed (...) some wrongdoing, but was not forced to stand trial in a formal judicial court. In order to prove his innocence and, thereby, mitigate the damage caused by his suspected guilt, such an individual could—and sometimes did—arrange for himself to undergo an ordeal at his own expense and independently of any formal plaint. After establishing the practice of ordeals of this sort in pre-modern India, this article then examines some possible explanations for their development. (shrink)

This paper argues that the framework of Community of Practice is beneficial for an understanding of the linguistic practices that international courts and tribunals employ in their interpretative approaches. Other than the frameworks of the social network, the speech community, and the epistemic community, the framework of Community of Practice can be said to allow for a more critical assessment of the social context in which international courts and tribunals function. Such an assessment is crucial in that it (...) is in that social context that interpretative approaches can be said to take form and in return shape the social institutions that international courts and tribunals comprise. That is, the framework of Community of Practice entails the notion that any form of meaning and its subsequent reifications, including, actual language use, are continually negotiated communally as a result of social interaction and, hence, shape the social constellations in which such interaction takes place accordingly. (shrink)

When picking up a book titled Licensed to Practice: The Supreme Court Defines the American Medical Profession, one cannot be faulted for expecting a rather dry legal discourse on the Supreme Court case that cemented medical licensure as the norm of American life. James Mohr dispels these expectations from the very first page of the volume. Instead of recitation of legal doctrine, Mohr begins with a murder mystery. While we know from the very first pages the answer (...) to “whodunit,” the rest of the book masterfully explains why they did it. As it turns out, what led to the murder was an intense fight over the proper way to practice medicine. Mohr’s work is.. (shrink)

The aim of this article is to determine how can new interpretations of old institutes change the status of the taxpayers and tax administrators and to suggest what can the Ministry of Finance do to solve the problem – it can try setting a uniform interpretation of tax institutes. It deals with two findings of the Constitutional Court of the Czech Republic concerning two institutes described in Tax Administration Act: time-limits for tax assessment and tax inspection; and one finding (...) of the Highest Administrative Court concerning local taxes. Court interpretation is only one of several possibilities of interpretation. Continental system of law differs from the Anglo-American system and we should search for information in the acts, and court practice should be used only alternatively. (shrink)

The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the Court’s idiosyncratic (...) translation policy. (shrink)

This article examines a legal dispute over the ownership of nine bondservants between a Buddhist monastery and two monks and a nun, focusing on the legal apparatus and practices in Dunhuang when it was under Tibetan control. During the Tang, eminent monks of the Buddhist clergy petitioned for exemptions from public courts in order to restrict trials of ordained Buddhists at alternative venues. Such petitions were declined, granted, or revoked by different Tang emperors. This case study demonstrates that ordained Buddhists (...) on this Sino-Tibetan frontier affiliated with the Buddhist clergy in Dunhuang did not enjoy this privilege. Instead of being shielded from public attention, two Buddhist monks and a nun successfully litigated against a Buddhist monastery in a public court. (shrink)

Domestic courts are often quoting foreign case law on human rights. The conversation pursued through cross-referencing across jurisdictions has added to the globalization of international human rights standards. As the practice is gaining ground and becoming a more permanent feature of domestic judgments, its relevance needs to be examined. A closer look at the practice will bring forth a more realistic understanding of the approaches of domestic courts and the advantages which they offer to the institution. This paper (...) raises few questions on the value and influence of cross-referencing in the area of human rights. Questions in this regard can be posed as to (a) whether cross-referencing is reflective of an emerging consensus on the subject matter? (b) Is it strategic for domestic courts to quote foreign case law? (c) Is the practice of cross-referencing simply a trend or an urge to belong to a community of courts? (d) Is the practice of relevance towards the implementation and advancement of international human rights standards? The topic can shed light on broader themes including the universality of human rights, contestations/disagreements over human rights standards, and the measure of acceptability of international human rights standards within domestic settings. This paper discusses the practice, its role and influence in relation to international human rights standards. Three judgments [of the courts of Nepal, India and Singapore] addressing the human rights and homosexuality agenda have been illustrated for discussion. (shrink)

Legal education in continental Europe -- The law of nature in European courts -- Legal education in England -- The law or nature in English courts -- Legal education in the United States -- The law of nature in American courts.

Japan saw a sharp increase in the number of non-Japanese residents and migrants during the period of its high economic growth in the 1980s and 1990s. This impacted on how the justice system provides language assistance to non-Japanese speaking background parties in investigative interviews and courtroom proceedings. While the number of defendants who received interpreter assistance in Japanese criminal trials hit its peak in 2003, quality of legal interpreting is still a serious issue. In this article, we discuss how the (...) Japanese criminal justice system has approached issues in judicial interpreting in the last four decades by analysing how “court interpreting” and “court interpreters” have been represented in court decisions. By doing so, the paper aims to explore the judiciary’s ideologies about court interpreting and problematise these ideologies in looking towards improvement of language assistance in the Japanese legal system. (shrink)

This article focuses on Court of Appeal sentencing practice in cases of marital and relationship rape. In particular, it examines the sentencing principle set out in the case of Berry in which it was stated that cases of marital and relationship rape sometimes involve less 'violation' and 'defilement' than cases of stranger rape and consequently are given reduced sentences. This article argues against such an approach on the basis that it is poorly reasoned and lacks support from the (...) research literature on rape trauma. In addition, a statistical analysis of Court of Appeal sentencing appeals indicates that the Berry principle is seriously undermining the Billam sentencing guidelines for rape. An analysis of appellate decisions in the USA indicates a very different attitude to the seriousness of marital and relationship rape based upon a willingness of the appellate judges to utilize research evidence in their decisions. (shrink)

Throughout his entire career, Nishida Kitarō was, arguably, interested in challenging Immanuel Kant’s formulation of the moral will. In his first work, An Inquiry into the Good, he criticizes Kant’s pure practical reason as idealistic, arguing that the good should be understood not in terms of an abstract, formal relation of reason with itself, but in terms of personality as a single, unique, unifying power that is the true reality of the self. He echoes this language in his last work, (...) “The Logic of the Place of Nothingness and the Religious Worldview,” proposing that the personal self exists as a self-determining individual through creative expression. This article will investigate how Nishida’s development of this concept of the personal self grounds his proposal that the goal of the moral will is realization of the good as a personal, rather than abstract, ideal, through the intentional action of active intuition. (shrink)

This article charts a path between those who champion the culture concept and those who think it dangerous. This path navigates between two positions: realists who adopt realist conceptions of both the culture concept and the category of cultural groups, and fictionalists who see such efforts as just creative and fictional extrapolation. Developing the fictionalist position, I suggest it overstates the case against realism: there is plenty of room for realist positions that produce well-grounded empirical studies of cultural groups. Nonetheless, (...) I stress the importance of one element of the fictionalist critique: that the choice of ontology can lead to downstream harm. Developing an extended case study around the work of the anthropologist Julian Steward, I show how ontological decision making is an important element of contemporary scientific and policymaking work. I conclude by arguing that greater attention should be paid both to the processes by which ontologies are adopted and the potential consequences that may result. (shrink)

The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of (...) the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order and the political order. The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts “permitted” and “prohibited,” “threat of use” and “possession of the weapon,” and “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law. (shrink)

“No one can serve two masters.” This Bible quotation highlights an irreducible contradiction, which echoes numerous organizational settings. This article considers the under-explored ethical implications of paradoxical injunctions created by such a contradiction at the managerial level. Contradictory organizational constraints turn into paradoxant systems , where the organization structurally settles paradoxical injunctions which challenge managerial ethics in practice. We then ask what managerial responsibility means in such contexts and find that managers have then to reshape their practice (...) as a situated construction through constant mediation between different “masters” and bricolage (i.e., tinkering with concepts). An ethnographic case study of an anti-money laundering service in an investment bank illuminates this phenomenon from a practice perspective. The possibility to enact an actual ethical practice within the contradictory organization relies on a new role of the manager. This implies drawing on an approach of responsible management as an enactment of ethics in practice which is situated within the framework of a new conception of both the organization, as a structurally “paradoxant system,” and the manager as a mediator in charge of enacting coherence. (shrink)

The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious (...) courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights. (shrink)

Withdrawal of artificially delivered nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) requires judicial approval in England and Wales, even when families and healthcare professionals agree that withdrawal is in the patient9s best interests. Part of the rationale underpinning the original recommendation for such court approval was the reassurance of patients’ families, but there has been no research as to whether or not family members are reassured by the requirement for court proceedings or how (...) they experience the process. The research reported here draws on in-depth narrative interviews with 10 family members (from five different families) of PVS patients who have been the subject of court proceedings for ANH-withdrawal. We analyse the empirical evidence to understand how family members perceive and experience the process of applying to the courts for ANH-withdrawal and consider the ethical and practice implications of our findings. Our analysis of family experience supports arguments grounded in economic and legal analysis that court approval should no longer be required. We conclude with some suggestions for how we might develop other more efficient, just and humane mechanisms for reviewing best interests decisions about ANH-withdrawal from these patients. (shrink)

In this paper, the authors first emphasise the connection that exists between bioethics and law. However, special attention is given to the link between bioethics and human rights, which share the idea of protecting similar values, especially the protection of life and human dignity. Identifying the interdependence and interrelation of these concepts is a prerequisite for further exploration of how and in what context the European Court of Human Rights decides on bioethical issues it encounters when ruling on classical (...) human rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Once the important features that determine the relationship between bioethics and human rights are identified, these features will be practically examined through the group of cases in which the Court has addressed the issue of mandatory vaccination, which has been in the public spotlight in recent years. (shrink)

While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role of the (...) courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts. (shrink)

The reality of current clinical practice in the UK is that where a patient’s family refuses to agree to testing for brain stem death (BD), such cases will ultimately end up in court. This situation is true of both adults and children and reinforced by recent legal cases. While recourse to the courts might be regrettable in such tragic cases, if public trust in the medical diagnosis of BD is to be maintained all aspects of the process must (...) be conducted in a way that is transparent and open to scrutiny. This is not an ‘ineffective expenditure’ of resources, but an essential element of a human rights-compliant legal system. (shrink)

Practical wisdom eliminativism has recently been proposed in both philosophy and psychology, on the grounds of the alleged redundancy of practical wisdom (Miller 2021 ) and its purported developmental/psychological implausibility (Lapsley 2021 ). Here we respond to these challenges by drawing on an improved version of a view of practical wisdom, the “Aretai model”, that we have presented elsewhere (De Caro et al. 2021 ; Vaccarezza et al. 2023 ; De Caro et al. forthcoming ). According to this model, practical (...) wisdom is conceptualized: (i) as virtuousness _tout court_, i.e., as the _ratio essendi_ of the virtues, and (ii) as a form of ethical expertise. By appealing to the first thesis, we counter the charge of psychological implausibility, while we rely on the second thesis to address the accusation of redundancy. In conclusion we argue that the Aretai model implies a significant paradigm shift in virtue ethics. Practical wisdom emerges as both necessary and sufficient for virtuousness, thereby downsizing – without eliminating entirely – the role that individual virtues play in our ethical lives. (shrink)

Recently, the Supreme Court of Nigeria in Tega Esabunor v Faweya & Ors (2019) LPELR 46961 (SC) dismissed an appeal seeking to quash the order of a magistrate court for the transfusion of blood to a baby. The appellants contended that the court had no jurisdiction to make theorder. The crux of the case was whether the parents’ right to consent to the child’s treatment based on religious beliefs supersedes the child’s right to live, thus reflecting the (...) tension between a parent’s right to give consent to the choice of treatment for their child, and the court’s power to override such rights through the inherent parens patriae jurisdiction of the state. The case also reflects the tension between the freedom of a parent to practise their religion and the right of a child to live, in the medical context. This article examines the findings of the Supreme Court in Tega Esabunor’s case, considering whether the court’s decision is in line with the generally accepted practice on when the state can intervene if persons with parental responsibility refuse medical treatment for an incompetent child because of religious beliefs.Cases from other jurisdictions are analysed to ascertain the position of foreign courts. It is submitted that the Supreme Court’s judgmentreflects accepted international practice regarding parental refusal of consent for medical treatment of a child. (shrink)

This article aims to contribute to the currently sparse literature on transnational families and gender. It focuses on the retrospective accounts of Caribbean-born adults who as children were serial migrants, joining their parents in the UK following a period of separation. It considers aspects of their relationships with their siblings and with their mothers and fathers. The article illuminates what the serial migrants viewed as contradictory everyday practices that produced ‘non-shared environments’. It discusses three ways in which transnationalism appeared (...) to be a central part of the serial migrants’ family lives. First, it was embodied. Second, it was lived as cultural difference between Caribbean-born and UK-born siblings. Third, it was reported to be evident in parental practices. The article illustrates the importance of viewing gendered narratives in a psychosocial intersectional perspective. (shrink)

The famous dispute between Protagoras and Euathlus concerning Protagoras’s tuition fee reportedly owed to him by Euathlus is solved on the basis of practical argumentation concerning actions. The dispute is widely viewed as a kind of a logical paradox, and I show that such treating arises due to the double confusion in the dispute narrative. The linguistic expressions used to refer to Protagoras’s, Euathlus’s and the jurors’ actions are confused with these actions themselves. The other confusion is the collision between (...) the pairs of incompatible actions ambiguously expressed by two different pairs of sentences, one of which is a propositionally consistent pair whereas the other is an inconsistent one. The actional paradox solution aims to clear up these confusions by means of two core borderlines, propositional and expressive, drawn between the actions and the propositions. The propositional distinction says that actions are empirical facts and they lack truth values unlike propositions, which are mental entities and are often employed for referring to the actions. This distinction helps to avoid the confusion between the empirical incompatibility of actions and the truth-functional inconsistency of propositions. The expressive distinction claims that although the same linguistic sentences can be used to refer both to actions and propositions, two empirically incompatible actions can be expressed both by a pair of inconsistent propositions as well as by a pair of consistent ones. Therefore, the action of Protagoras’s being paid may be linguistically symbolized in four different ways: Protagoras gets paid due to the verdict, Protagoras gets paid due to the contract that amount to Protagoras does not get paid by the contract and Protagoras does not get paid by the verdict respectively, and likewise for Euathlus’s actions. The two distinctions are used for classifying the two groups of paradox solutions, legal and logical, proposed so far depending on which of the two confusions they purport to escape from. The actional reconstruction of the paradox suggests that there is only one single agent in the dispute, Protagoras, while the other named Euathlus is a ‘phantom,’ which most probably was invented by Protagoras himself for the sake of creating this challenging sophism. (shrink)