Dưới đây là các bài nghiên cứu có liên quan đến chủ đề này mà Ngữ vô tình đọc được bắt đầu từ hôm nay (18/6/2021). Nhiều bài Ngữ chỉ đọc qua tóm tắt và đưa thên đây mà chưa kịp đọc hết. Click vào đề mục để tải từ nguồn chính chủ. Mong hữu ích.
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Stanford Encyclopedia of Philosophy (Legal Interpretation)
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Culture and Law: The East Asian Perspective (Prof. Maji C. Rhee, Waseda University)
(3/2/2022)
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases….
Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense.
(05/11/2021)
This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline.
(10/10/2021)
Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.
Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.
(25/9/2021)
This introduction to Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding, eds., Cambridge University Press, 2020) presents interdisciplinary perspectives on the significance of trust to fiduciary relationships and fiduciary law. It also briefly summarizes contributions to the volume. The volume includes chapters by the editors and Rob Atkinson, Brian Broughman, Evan Criddle, Paul Faulkner, Evan Fox-Decent, Thomas Gallanis, Andrew Gold, Kirsty Gover, Carolyn McLeod, James Penner, Elizabeth Pollman, Gerald Postema, Nicole Roughan, Emma Ryman, Gordon Smith, Lionel Smith, and Tess Wilkinson-Ryan.
(23/8/2021)
Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.
(16/8/2021)
Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? At least some of these questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory.
(23/7/2021)
This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.
Critical scholars have highlighted the role of law in subordination and argued for redirection of energy away from courts, but they have devoted less attention to a more basic problem: The civil justice system supports and depends on market-based development of law. This can be seen in the wide divergence in social investments in the fora that adjudicate the problems of the poor and those reserved for the courts that entertain the concerns of the rich.
(16/7/2021)
The rule of law is a set of principles, or ideals, for ensuring an orderly and just society. Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.
[I have this quote from this article “The Business Lawyer and the Rule of Law – The Rule of Law Is Our Business”. And there is an informative footnote in it: “Delaware is known as the First State not because of its status as the jurisdiction of choice for business formation but because on December 7, 1787, it was the first state to ratify the U.S. Constitution.”]
"Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers" and statutory interpretation sometimes looks to the "intentions of the legislature" or "congressional intent." This post provides a very rough and ready introduction to the idea of "intent" and related notions of "intentionality" for law students (especially first year law students) with an interest in legal theory.
Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause Barak Obama to win the Iowa caucuses in 2008. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.
This book review analyzes Visa Kurki’s innovative theoretical construction of the legal person and compares it with how the concept is used in two Andean countries: Bolivia and Ecuador. Kurki offers an alternative view of the fundamental considerations regarding the legal person, a view mostly based on the work of W. N. Hohfeld. This review first highlights the key points in Kurki’s theory and then examines a possible challenge to his scheme through the legal systems of Bolivia and Ecuador, both of which recognize non-sentient beings as legal persons. When the concept of Pachamama (Mother Earth) is defined as a starting point, a whole new plethora of legal persons emerge (rivers, trees, lakes, etc.). This extremely radical view aims to rescue ways of life quite different than Western ones and to provide the population with robust mechanisms for the protection of Pachamama. It is also a theoretical “counter-offer” to Kurki’s view of personhood.
(19/6/2021)
Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorizing by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.
(18/6/2021)
Often, academics and scholars of legal history argue that the tort law long ago lost its mooring. Many believe that the development of the tort law is often misunderstood. While a group propels that the tort law developed from the brute recognition of strict liability for imposing more and more refined and moral standards of negligence, but many consider it as partially correct. Therefore, over the time, tort law encountered a number of theoretical and fundamental issues and challenges. Secondly, the contract law is entirely domestic origin. Evidently, the history of contract law is comprised of three forms of action namely debt, covenant and assumpsit. This article intends to explore the factors mainly involved in the development of the contract and tort law principles in the early twentieth century.
It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and they can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government actions is thus critical, for the benefit of both private actors and society at large. In this Article, we consider market-based and non-market-based means by which to generate information about future government action. We find no perfect answer.
We consider three market-based solutions—prediction markets, the use of equity markets to hedge against future government action, and machine-learning and predictive technologies—and three government-based solutions—greater transparency, the development of intellectual property rights in predictive information, and prediction-forcing regulation, which is regulation that requires private actors to make public predictions about future government action. None of these is a panacea. The market-based solutions founder on the limitations and thinness of markets. Government-based solutions come with significant structural downsides related to the division of authority among different levels of government (federal versus state versus local) and different branches of government at each level (executive versus legislative). We conclude that prediction-forcing regulation may be the most promising avenue, though it too is likely not a full solution.