The ArgumentIn this we explore some of the ways in which a state scientific laboratory (Daresbury SERC) reacted to the rtetoric and forces of the marketpace in the 1980s. We describe laboratory attempts to create what we call “good customers” while converting itself into a “good seller” by developing a particulat set of costing practicting that were closely related to the implementation of a management accounting system. Finally, we consider how Daresbury response to “market forces” influenced scintific and organzational practice, (...) and arsponse that the social technologies of governmentality performed by accountancy — but also by scientific and bureaucratic practice are complex, discursively heterogeneou, and used in context-sensitive ways. This means, or so we suggest, that it is difficult to mount general argunents about “science” and “the market,” and that the use of such large-scale institions impedes impedes analysis. (shrink)

NO THREE CONCEPTS ARE MORE CENTRAL to legal theory than nature, custom, and stipulation; thus the familiar expressions "natural law," "customary law," and stipulated or "positive law." The problem is that conflicting claims are made for natural law, customary law, and positive law. I will argue that to make sense of these conflicting claims we must first make a distinction between law as a species of social order and jurisprudence as the explanation of law. For example, the debate between the (...) advocates of legal positivism and the advocates of natural law reflects a confusion between law and jurisprudence: law as social order is essentially stipulated, but the jurisprudential explanation of law requires the three categories of nature, custom, and stipulation. Thus legal positivists rightly insist that all law is stipulated, but advocates of natural law rightly insist that the explanation of law requires the use of a notion of nature. Conversely, the legal positivists wrongly insist that jurisprudence must be restricted to the consideration of stipulated "norms" or "rules," and the natural law theorists wrongly insist that "nature" can stipulate a code of law. Finally, the historical school's emphasis on "customary law" reflects the same confusion between law and jurisprudence: there is no such thing as "customary law," but custom is an essential category of jurisprudence. Only by clarifying the distinction between law and jurisprudence can we begin to reconcile these three schools of legal theory. (shrink)

The writer examines the evidence regarding the claim that English lawyers of the early seventeenth century exhibited a jurisprudential outlook dominant enough to be correctly called ‘the common law mind’ - an understanding in which the common law was conceptualized as immemorially-old custom. He argues that there was no dominant common law mind in the period; that there were at least two widely-held orientations to the common law among common lawyers. One, held by some of the more traditional lawyers, did (...) emphasize the antiquity of the common law and identify it with custom; the other, taken by equally prominent lawyers who had been influenced by their educations in philosophy, logic and humanistic scholarship, was more concerned with conceptualizing the law as reason. The writer examines what lawyers meant when they spoke of the law as reason and about the artificial reason of the law. (shrink)

A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out (...) of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law. (shrink)

No Protágoras, de Platão, ao defender a sua concepção segundo a qual a virtude se ensina, o personagem que dá nome ao diálogo faz uma breve exposição do que seria a educação tradicional em seu tempo e atribui a ela, aos costumes e às leis o poder de promover nos cidadãos a conquista das virtudes cívicas fundamentais, ainda que destaque a necessidade do concurso da coerção. Uma comparação com a proposta de educação visando às mesmas virtudes na República mostrará uma (...) notável semelhança entre as duas concepções. Porém certas diferenças fundamentais também se fazem notar. O sofista do primeiro diálogo mencionado parece muito mais otimista do que o Sócrates do segundo quanto à possibilidade de promover a virtude. O que parece patente é que, segundo esse Sócrates, é necessária uma intervenção muito profunda na educação e nos costumes antes que se possa esperar que os homens adquiram e mantenham as virtudes cívicas fundamentais. Essa intervenção parece fundada num profundo conhecimento da alma humana e das forças em jogo nela. Parece também fundada em uma compreensão de como intervir na alma para promover o ordenamento que tornará possível a virtude. (shrink)

(2001). Rewriting the Utilitarian Market: Colonial Law and Custom in mid-Nineteenth-Century British India. The European Legacy: Vol. 6, No. 2, pp. 177-188.

Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo. By Reem A. Meshal. Cairo: American University in Cairo Press, 2014. Pp. xii + 290. $75.

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This Article proposes an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else being equal, informationally demanding customs require an audience with a high (...) degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can easily draw on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e., outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information-cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information-cost theory of custom sheds some light on the history and controversies over the numerus clausus and on the question of baselines of property entitlements in the law of takings. (shrink)

In the regime of Anglo-American tort law, every person has a responsibility to comport him- or herself with “due care” in going about day-to-day activities so as not to imperil the health, safety, or general welfare of others. The gold standard for determining what constitutes due care in any particular situation is what a reasonable person, similarly situated, would do. Determinations of due care are necessarily fact specific. Nevertheless, the general objective is to strike an appropriate balance between an unrealistically (...) high standard of caution and one that fails to take into account the known or foreseeable risks of any human endeavor. The same standard applies to individuals regardless of their age, gender, race, and level of education or economic status. The standard also applies to fictional “persons” such as corporations. The usual or prevailing custom and practice in an industry or occupation may provide relevant evidence of what constitutes “due care” in the activities common to it, but that evidence can be effectively overcome or rebutted by competent, credible evidence that the custom and practice either diverges from what it has been asserted to be or that the custom and practice is itself unsafe or otherwise poses an unreasonable risk of harm to others. Until quite recently, a singular exception to this general principle of tort law was made for the medical profession. We will consider this exception in the next section. (shrink)

Vol. 1. Contemporary issues -- Jewish philosophy -- Prayer -- Shabbat and festivals -- What we eat -- A question of ethics -- Lifecycles.

Customs law and procedures are important part of the trade system in Jordan. They regulate the flow of goods across the borders. The purpose of this paper is to examine Jordan's import regime by analyzing customs law, rules of origin, free trade zones, and tariffs reform.

Despite their obvious importance to social and political life, custom and customary law have largely escaped philosophical scrutiny. There are important recent philosophical analyses of convention, but none of custom. And customary law has been recently neglected by the dominant legal positivism. One reason for the neglect of custom is the familiar dichotomy between nature and convention. Social practices are said to be either by nature, and therefore assumed to be unalterable, or they are said to be by convention, and (...) therefore assumed to be created at will. But customs arise neither simply from nature nor from deliberate stipulation, so they are excluded by the familiar opposition of nature and convention. Custom is a notoriously vague concept: custom seems both to be natural and conventional. I attempt to show how custom bridges human nature and social norms. I argue that custom must be analyzed into two more logically basic concepts: habit and convention. Custom is a habitual convention and a conventional habit. I discuss habit and convention in relation to contemporary psychology and analytic philosophy. Habit roots custom in the physiology of human nature while convention links custom to social norms. Aristotle pioneered this approach to custom by using two words to describe what we call custom: ethos and nomos. Ethos focuses our attention on the habitual dimension of custom while nomos focuses our attention on the conventional dimension of custom. I argue that the function of law is to remedy the deficiencies of custom: law is custom’s instrument for shaping its own evolution. (shrink)

Codes and Customs: Millennial Perspectives is a multifaceted collection of essays which trace the development of selected topics, such as: Justice, Punishment, Marketplace, Worldmaking, Contract, Illegality vs Legality, Ritual, Cooperation in Community, Codification in Italian Law, Jewish Law, and Legal Cultures. These topics are comprehensively developed in the subsequent books of this series, but here the various ideas that have evolved over the past thousand years are interrelated. In addition to the several ideas that are to be the focal (...) topics of future volumes, several related concepts, including the possibility of law/environment, enhance th book's richness. (shrink)

This study aims to examine the status of land ownership in Simalungun district in terms of historical, social, cultural and tenure perspectives. It is important to study this issue because until now the issue of land ownership has not been thoroughly resolved because there are migrants who claim that their customary land was found in Simalungun, whereas in reality their customary land was not found in Simalungun, but what was found was the king's land ( partuanon) according to the surname (...) of the lord of the rest of the kitchen based on the custom of the tolu sahundulan lima saodoran. The method used in this research is descriptive qualitative with purposive sampling technique. Data analysis begins with the process of collecting primary data through in-depth interviews with 13 informants. By using interview guideline research instruments combined with the results of library research. The results of the interview transcripts were collected, tabulated, analyzed, verified, and displayed until the conclusions of the research results were formulated. The results of this study showed that in Simalungun district there were no customary lands, customary forests and customary lands from migrant residents and ethnic Simalungun. The land in Simalungun district is the king's land (Partuanon), the people and migrants are only given the right to cultivate, not to own in accordance with the ruling king's clan, namely Sisidapur and Simalungun customary law based on the Tolu sahundulan lima saodoran custom. The transfer of rights and land tenure in Simalungun district occurred after the proclamation of 17 August 1945 and the social revolution in 1946. All land in the former autonomous region in Simalungun became state property, including all of PT. TPL Tbk's concession land in Simalungun district. (shrink)

Proceeding from the insights of Petrażycki, Polish-Russian legal realists distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value-free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value-laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources as binding, while legal policy evaluates the effects produced by given NSs based on causal (...) laws and on the subject's goals. PRRs then conceptualize custom as a representation of people behaving in a certain way : We have a custom on the threefold condition that Rc is believed true by a given X, Rc causes the existence of a given normative psychical experience in X, and X expressly refers to—or would refer—to Rc in justifying an NPE. PRRs use the term customary law to refer to legal experiences caused and justified by an Rc. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, by contrast, what matters is whether the dogmatician—qua subject—adopts custom as a binding NS, whether it is true that people behave in a given way bw, and whether bw resembles the behavior that is deontically qualified in the norm under dogmatic evaluation. Finally, from a legal-political viewpoint, PRRs hold that customary law in modern societies, owing to its conservative nature, should be eradicated for the goal of removing inequalities and fostering benevolence. (shrink)

Can the concept of law be indiscriminately extended to times and places in which it did simply not exist? Such an extension is at best useless and at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of its contemporary common-sense understanding: positive law. Parallel to Western societies in which it firstly emerged, the concept of positive law developed in many places, including countries characterized as Muslim. There, it faced other existing (...) normativities, like customs and the Sharia. This book aims, from the Muslim world's perspective, to clarify the uses of the concept of law and the ways of studying it, to describe some of its historical developments, including the ideas of constitutional law, customary law and forensic evidence, and to describe present-day practices, including reference to law sources, rules and interpretation. (shrink)

The 21st Century has seen a dramatic increase in the number of books published on practical halakha. As a result, Halakhic observance has never been more accessible. But how does increased commitment to halakhic detail accomplish its goal of personal and ethical refinement? Halakhic practices are meant to be spiritual entry points for divine encounters. Commitment to Jewish ritual should mold one's character and help facilitate a life guided by divine ideals. In fact, adherence to Jewish law without a parallel (...) understanding of the meaning behind the law runs the risk of transforming halakha into a formulaic set of rules without any larger spiritual vision. Jewish Law as a Journey is a valuable companion to published works of practical halakha. It explores virtues and ideals foundational to daily halakhic practice. Moreover, it offers a systematic exploration of the mitzvot one encounters in a given day and the transformative religious messages that underlie them"--front flap. (shrink)

This book addresses current practices in customary law. It includes contributions by scholars from various legal systems (the USA, France, Israel, Canada et cetera), who examine the current impacts of customary law on various aspects of private law, constitutional law, business law, international law and criminal law. In addition, the book expands the traditional concept of the rule of law, and argues that lawyers should not narrowly focus on statutory law, but should instead pay more attention to the impact of (...) practices on "real legal life." It states that the observation of practices calls for a stronger focus on usage, customs and traditions in our legal systems - the idea being not to replace statutory law, but to complement it with customary observations. (shrink)

This article examines Montesquieu's concept of natural law and treatment of legal customs in conjunction with his theory of moral psychology. It explores his effort to entwine the rational procedural quality of laws with the substantive principles that sustain them. Montesquieu grounds natural law in the desires of the human being as ‘a feeling creature’, thus establishing the normative force of desire and making right action attractive by engaging the passions rather than subordinating them to reason. As a result, (...) natural law generates both political norms and the motivations that drive political actions. It provides a standard for assessing the ostensibly jumbled multiplicity of legal customs in human societies. And it reminds us that there is more to political theory than the rational justifi-cation of norms, that central to any account of liberal constitutionalism must be an effort to show the attractions – and not only the justice or the rationality – of right action. Key Words: law • Montesquieu • moral psychology • motivation • natural • law • norm justification • passions. (shrink)

The thought and work of the Jesuit Francisco Suárez (1548-1617) is widely acknowledged as the culmination point of the contribution of the theologians and jurists of the so-called School of Salamanca to the development of modern Western law. This collection of studies on the legal work of Suárez explores some of his major forays into the law. Both his theoretical system-building as well as his interventions in practical questions are covered. Next to discussions on the nature of law and its (...) different categorisations, they extend to various subbranches of the law including family law, property law, the law of obligations, criminal law and international law. Contributors are: Dominique Bauer, Daniel Schwartz, João Manuel Azevedo Alexandrino Fernandes, Lisa Brunori, Wim Decock, Bart Wauters, Gaëlle Demelemestre, and Jean-Paul Coujou. (shrink)

It is commonly assumed that the pre-codified, customary law of war had little true influence on the decisions or behavior of combatants in the western world. Evaluating this assumption concerning the custom (or norm) of the giving of quarter to enemy combatants in the Texas War of Independence of 1835--1836, this paper finds a strong and widely accepted norm on this subject already by the early 19th century, which exerted significant influence on the behavior in and the results and consequences (...) of the war. The following of this custom of war by the Texian Army, on the one hand, and its intentional and preplanned breaking by the Mexican army headed by Santa Anna for the supposed military and psychological benefits that would accrue from it, on the other, such as in the cases of the Alamo and Goliad, led to severe internal and external consequences for the Mexican side in the short and long term that greatly contributed to their failure to achieve their objectives and to the Texian success in achieving theirs. These consequences indicate the importance of the norms of warfare, even in the pre-codification era, and the major potential costs involved in their breaking or disregard by decision makers. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

It has been claimed that to fully understand the law, one must know the language of normative texts and the relevant rules governing its use. It usually means that normative texts do not seem to be comprehensible enough to persons without formal legal training. In an on-going research project, we are focusing on the process of writing texts of legal regulations, conducting semi-structured interviews with those involved in drafting normative texts. In this paper, we focus on lawyers as a speech (...) community of legal language speakers and we discuss why and to what extent this speech community may be considered an elite in a society. We show that competent usage of special – legal – language in regulating the whole society may help create a special group of persons wielding an important segment of cultural capital: the knowledge of legal language, and, in consequence, competent knowledge of law. Given the fact that this language is used to exercise (legal) power in a society, lawyers appear to be in the advantageous position of an elite. We argue that those who draft new legal texts reproduce writing rules and customs, constantly re-creating legal language as a language mostly incomprehensible to a non-competent speaker, and, in consequence, creating lawyers as an elite speech community. (shrink)

Although many modern philosophers of law describe custom as merely a minor source of law, formal law is actually only one source of the legal customs that govern us. Many laws grow out of custom, and one measure of a law's success is by its creation of an enduring legal custom. Yet custom and customary law have long been neglected topics in unsettled jurisprudential debate. Smaller concerns, such as whether customs can be legitimized by practice or by stipulation, (...) stipulated by an authority or by general consent, or dictated by law or vice versa, lead to broader questions of law and custom as alternative or mutually exclusive modes of social regulation, and whether rational reflection in general ought to replace sub-rational prejudice. Can legal rules function without customary usage, and does custom even matter in society? The Philosophy of Customary Law brings greater theoretical clarity to the often murky topic of custom by showing that custom must be analyzed into two more logically basic concepts: convention and habit. James Bernard Murphy explores the nature and significance of custom and customary law, and how conventions relate to habits in the four classic theories of Aristotle, Francisco Suarez, Jeremy Bentham, and James C. Carter. He establishes that customs are conventional habits and habitual conventions, and allows us to better grasp the many roles that custom plays in a legal system by offering a new foundation of understanding for these concepts. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and History, Customs and EthicsHui-Chieh Loy (bio)Origins of Moral-Political Philosophy in Early China: Contestation of Humaneness, Justice, and Personal Freedom. By Tao Jiang. New York: Oxford University Press, 2021.Tao Jiang's Origins of Moral-Political Philosophy in Early China is a serious tour de force of a study. In many ways, I am reminded of Angus Graham's Disputers of the Tao and Benjamin Schwartz' The World of Thought in (...) Ancient China—but updated. A signal difference is that it is more constrained in its coverage of figures, texts, and especially in having the topical focus upon moral-political philosophy. At the same time and within the chosen (narrower) confines, it often examines its subject in greater detail and draws on more recent discussions.One neat thing that Jiang does is to deliberately weave in explicit discussions of how each subsequent thinker or text incorporated or criticized ideas associated with earlier thinkers. (I formulated it this way since there isn't enough historical evidence about who-actually-read-what in the ancient world, citation practices being what they were.) In this regard, I am especially heartened to read, for example, the sections on "Traces of Mohist Elements in the Laozi" (3.3.2), and "Mohist Elements in Han Feizi's Thought" (7.3.3).By no means should the desultory remarks below be counted as a full review or assessment (impressionistically, this is the sort of book I will recommend that my grad students read—there, I've said it). Think of them as humble shards of pottery thrown in the hope for some jade in response. To make my task more focused, I will comment on the Sinology versus Philosophy distinction, and Jiang's treatment of the Mohists.I. Philosophy and History of PhilosophyAn important part of Jiang's Introduction is devoted to discussing the situation of Chinese Philosophy as a field in the Western Academy, caught between Sinology on the one hand and academic Philosophy on the other. Due to the different scholarly objectives and norms in the two disciplines, scholars working on Chinese Philosophy often find themselves caught [End Page 420] between two distinct audiences who demand different things. Jiang's aim is to propose an "interpretive model to distinguish two sets of scholarly objects operative in Sinology and philosophy. These objects are related and at times overlap, but they are also often irreducibly distinct, i.e., original text versus inherited text, historical author versus textual author, and authorial intent versus textual intent, with the former in the pairs belonging to Sinologists and the latter to philosophers" (p. 7). In general, I am highly sympathetic to the distinctions Jiang draws. But I do wonder if we need to step back and start from a wider context involving what is potentially a deeper divide.Now, it is entirely a caricature but the joke around the water cooler is that philosophers—especially those of a more "analytic" bent—often exude the attitude that they are not in the business of reading old books. Their project is one focused on issues and problems and puzzles that are ultimately about the natural and human world, rather than about texts and their interpretation, or even the historical thinkers themselves. To give some obvious examples, the intellectual questions they see themselves as answering are the likes of:• Can we know that God exists, if God exists at all?• What is the nature of moral claims? Do they admit of truth and falsity?• How is causation related to possibility?• Is a logic that dispenses with the law of non-contradiction viable?• What are the necessary and sufficient conditions of knowledge?• Is abortion morally justifiable?Sometimes the questions they ask even infringe on the results and insights from nearby fields, for instance linguistics and the natural and empirical sciences:• What is time?• Can a presentist conception of time be made consistent with contemporary physics?• What is the nature of consciousness? How is it related to physical neural states or informational computational processes?• Can computers be sentient?• How is morality related to the passions?• In what sense is a political order that does justice to diversity of moral beliefs... (shrink)

In this paper I show how what came to be known as “the double law of habit,” first formulated by Joseph Butler in a discussion of moral psychology in 1736, was taken up and developed by medical physiologists William Porterfield, Robert Whytt, and William Cullen as they disputed fundamental questions regarding the influence of the mind on the body, the possibility of unconscious mental processes, and the nature and extent of voluntary action. The paper shows, on a particular topic, the (...) overlap between eighteenth-century philosophical writings on the science of human nature on the one hand,and medical writings and lectures in physiology on the other. Other early modern writers discussed in the paper include René Descartes, Herman Boerhaave and David Hume. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides a particularly (...) detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)