...regions of Hong Kong, Macao and Taiwan have accurate regulations on this issue in their laws. However, a few researches have been done among the jurisprudential circles in China. But In reality, it is common to see the behaviors to violate the right of cohabitation, without any support from laws. According to this situation, this paper studies in the topic of cohabitation, trying to arouse the attention and introspection from jurisprudential circles to this issue, to promote an early solution of cohabiting right, to protect the legitimate interest of couples in China. This paper consists of three parts: introduction, body and conclusion. And the main body is divided into four chapters. Chapter I is basic theory of cohabitating right. The concept of cohabitation is the foundation of understanding the regulation of cohabiting right. The phenomenon of cohabitation can be derived from ancient time, but the concepts were different in ages. The right of cohabitation in this paper refers to the couple’s right to live together who has legal marriage relationships, that has the characters of exclusiveness, unity of right and obligation, closely connection to domicile, sexual life as main content, etc. Chapter II is foreign jurisprudential situation of the right of cohabitation and analysis. In this chapter, I mainly introduce the jurisprudential situations of the right of cohabitation in the representative countries from the two law systems, such as Germany, France, UK, USA, and Chinese...
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...Interactive Quiz for Modern-1e, Chapter 1 Chapter 1 — The Legal Environment 1. One of the oldest and most significant schools of jurisprudential thought is: a. the administrative law school. b. the environmental law school. c. the legal realists. d. the natural law school. Answers: a. Incorrect. Administrative law is a body of law consisting of the rules, orders and decisions of administrative agencies. It is not a school of jurisprudential thought. b. Incorrect. Environmental law is a body of law consisting of all statutes and regulations protecting the environment. It is not a school of jurisprudential thought. c. Incorrect. Legal realism is a significant school of jurisprudential thought that became popular during the 1920s and 1930s, but it is not the oldest school. d. Correct. The natural law tradition traces its origins to early Greek and Roman philosophical thought about the nature of law and its relationship to the natural world and the human experience. 2. The common law may be described as: a. general legal principles that evolved over time through court decisions. b. a body of rules governing the ownership of the oceans. c. an index of opinions by law professors. d. rules issued by an administrative agency. Answers: a. Correct. The common law, or judge-made law, is a set of general legal principles that evolved over time through court decisions. b. Incorrect...
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...theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".[1] As a result Hart's book has remained "one of the most influential works in modern legal philosophy",[2] and is also considered a "founding text of analytical legal philosophy",[3] as well as "the most successful work of analytical jurisprudence ever to appear in the common law world The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law...
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...benefiting from the law? What is justice?’” Each person too brings a level of intuitive and cognitive abilities to any question or argument; here too a Judge may be seen to seek impartiality who seeks out further information, education or expertise on a subject to allow them to give a more fully nuanced response. According to the Impartiality in Judicial Ethics: A Jurisprudential Analysis “The fundamental value in judicial ethics is impartiality. This means that a judge is duty-bound to decide cases on their merits, be open to persuasion, and not be influenced by improper considerations.” the same article also contains the following...
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...its own benefits to the people. But who are equals and who are unequal is a thorny issue, for the limited resources are much valuable and required by the various group of people and they have to be distributed justly and fairly. In the Indian constitutional scheme, it had been envisaged by the framers that there should be equality of opportunity is for all citizens in public employments and such equality of opportunity a fundamental right of the citizens’.At the same time, the need for some beneficial treatment to the weaker sections of the society was also enshrined with that right. What is the basis of distribution of societal resources to certain sections? The thrust of this Chapter goes with the following enquiry. Is there any jurisprudential foundation for protective discrimination? If so what is it? This aspect is assessed from the angle of different theories of justice viz., social justice, distributive justice, equality and equal opportunity and social engineering theory. The responses of Indian courts in this regard are also examined. Justice : Meaning and Content The concept of justice is even older than that of law. The maxim, fiat justicia ruat co'elum, i.e., let heavens fall, justice has to be done, is the quintessence of all philosophies the human beings have founded. Justice is considered...
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...dialectical tool of preference is the originalist “hammer”. The dialectical “hammer” gives Justice Scalia a tool that he thinks is an acceptable way to handle disagreements with fellow Justices. Once again, you can sense him uttering his all too famous phrase, “[a]nyway, that’s my view. And it happens to be correct” (qtd. in Murphy, 366). In using this type of terminology and comportment towards his fellow Justices, it is hard to find any substantial advantage. Maybe Justice Scalia's intent, in these opinions is to exert the interest's of those in power, rather than working from a foundation of impartiality. With the final analysis of Justice Scalia's originalism, the task presents itself in looking for a cause in which a ground to his jurisprudential tendencies can be found. Finding this ground requires an investigation into the reasons and history of his appointment to the Supreme Court. This historical analysis begins with the appointment of Justice Scalia to the Supreme Court in 1986. During this period of time, President Reagan was determined to fill vacancies in the Court with Justices who would be more conducive to conservatism. In The Rise of Conservatism in America, 1945-2000, Ronald Story and Bruce Laurie explain that, the Supreme Court composition prior to Scalia's appointment, and Justice Rehnquist's ascension as Chief Justice, was interpreted as, “a long-standing thorn in the side of conservatives” (Story and Laurie, 139). Pursuant to this belief, an intentional...
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...speech in Unit States, MacKinnon insists that the (legal) principle should define itself in substance rather than abstraction, based on each individual's living experience and history. "It is no longer blind to who is harmed; it will never forget who they are. " The most vocal critic of MacKinnon and (Andrea) Dworkin's rights-based approach to pornography is Ronald Dworkin, who writes a review for MacKinnon's work Only Words and criticizes her arguments in Freedom's Law The Moral Reading of the American Constitution . This is a wonderful debate, centered around the First Amendment and the Fourteenth Amendment to the United States Constitution. We can see MacKinnon's acute questioning about Freedom & Equality as a radical feminism jurisprudential scholar, or more accurately, she postulated an approach to the constitutional doctrine of free speech which "takes equality seriously", on the basis of her diagnosis that since "The male perspective (in law) is systemic and hegemonic ", the "law of equality and the law of freedom of speech are on a collision course " in the United States; While on the contrary, Dworkin insists his integrity theory in Freedom & Equality issue of this Anti-pornography debate, as he said in A Matter of Principle, "If we care so little for principle that we dress policy in its colors when this suits our purpose, we cheapen principle and diminish its authority." Start with a quick review of the debate and the analysis of MacKinnon's argument for Anti-pornography...
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...though] they were compelled to accept advice from their colonisers.” This may make practical sense to a political “spinmaster”, sloganeer or “message manager” and certainly to a political party leader and spokesman. But to an informed student of political philosophy it makes no good or clear sense. If by “daulat” one means a traditional aura of royal sanctity, grounded broadly in Southeast Asian (and originally Hindu-Buddhist) cosmology, then the largely powerless Malay Rulers may have enjoyed that kind of metaphysical prestige. The British not only permitted but actively encouraged them, in their mutual interest, to enjoy that kind of sublime elevation and closely managed dignity. But if one here means sovereignty in the jurisprudential and political-philosophical sense of absolute, or at least ultimate, reality-defining authority, then under the British the Malay Rulers were regrettably bystanders, or largely sidelined outsiders, to that kind of rule-grounding and law-founding political standing. That may be an unpalatable conclusion to draw. But unpleasant truths too must be faced. The Malay Rulers, sad though the point may be for many to accept, were not, during the years of British rule, the ultimate basis of effective, operative, everyday political reality. In that sense effective sovereignty had moved elsewhere. It had been seized and appropriated by others. That, after all, is what “colonialism” means and entails. The “Merdeka Process” was a movement...
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...THE INTERNATIONAL LEGAL ORDER Controversiae (disputes) is the first word in book I of Hugo Grotius’ foundational text De Jure Belli ac Pacis(The Law of War and Peace, 1625). Much modern scholarship in international law has followed this strand of Grotius’ thought in orienting the subject to the problem of managing disputes. Since the late nineteenth century, generations of leading scholar-practitioners have shaped a view of international law which emphasizes legal doctrines and materials related to disputes: the specific rules one party to a dispute may invoke against another, the sources (e.g. treaty, custom) to which an international court will look to identify international law rules, the general principles (e.g. acquiescence, abuse of rights) that international courts have borrowed from national legal systems to help deal with international cases, the foundational principles of international law (e.g. state responsibility) enunciated by courts, the precedential implications of a specific decision or a specific settlement agreement. This focus owes much to the sociological model of the successful international lawyer as it developed in the English and French traditions of international law over the past century: that of the academically respected practitioner, primarily the world–wise professor-counsel or the erudite lawyer–civil servant, whose career involved both scholarship and representing litigants in the management of disputes, and might eventually culminate in becoming...
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...Text and Context in Russian Legislation With Specific Reference To The Russian Constitution Nigel J. Jamieson* ABSTRACT Law and politics have a closer inter-textual relationship in Russian jurisprudence than would be understood generally of any European legal system. The closeness of this inter-textual relationship can be partly explained by history, culture, and language, as also by dialectics, ideologies, and literature. Concepts of law, government, and the state, together with concepts of federalism, democracy, and the rule of law, can vary so markedly from their apparently translatable equivalents that, even when recognising the formal concept of a codified Constitution, the inter-textual relationship between the enacted law and politics remains so dynamic as to be impossible to tell which it is, of law or of politics, that is the text, and which the context. This inter-textual relationship remains so strongly and continuously dynamic at the level of public and international law that the customary division by which lawyers, and common lawyers especially, assume law to be the text and politics to be the context carries a critical risk. This paper identifies that risk in terms of law, literature, and logic, as well as in terms of history, politics, and dialectics. To focus solely on law as a specialism without any more syncretic and synergic account of the other contributing disciplines, is to make the textual tail of the law wag the contextual dogsbody...
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...Chapter 1 Introduction to Law and Legal Reasoning Answers to Questions in the Reviewing Feature AT THE END OF THE CHAPTER 1A. PARTIES The automobile manufacturers are the plaintiffs, and the state of California is the defendant. 2A. Remedy The plaintiffs are seeking an injunction, an equitable remedy, to prevent the state of California from enforcing its statute restricting carbon dioxide emissions. 3A. Source of law This case involves a law passed by the California legislature and a federal statute; thus the primary source of law is statutory law. 4A. Finding the law Federal statutes are found in the United States Code, and California statutes are published in the California Code. You would look in these sources to find the relevant state and federal statutes. Answer to Debate This Question in the Reviewing Feature at the End of the Chapter UNDER THE DOCTRINE OF STARE DECISIS, COURTS ARE OBLIGATED TO FOLLOW THE PRECEDENTS ESTABLISHED IN THEIR JURISDICTIONS UNLESS THERE IS A COMPELLING REASON NOT TO. SHOULD U.S. COURTS CONTINUE TO ADHERE TO THIS COMMON LAW PRINCIPLE, GIVEN THAT OUR GOVERNMENT NOW REGULATES SO MANY AREAS BY STATUTE? BOTH ENGLAND AND THE U.S. LEGAL SYSTEMS WERE CONSTRUCTED ON THE COMMON LAW SYSTEM. THE DOCTRINE OF STARE DECISIS HAS ALWAYS BEEN A MAJOR PART OF THIS SYSTEM—COURTS SHOULD FOLLOW PRECEDENTS WHEN THEY ARE CLEARLY ESTABLISHED, EXCEPTED UNDER COMPELLING REASONS. EVEN THOUGH MORE COMMON LAW IS BEING TURNED INTO...
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...Principle of Supremacy The EU Treaties do not contain a specific legal base or express declaration for the supremacy of EU law but some articles logically imply supremacy. The Lisbon Treaty is silent about the principle of the supremacy of the European Union law over national law. However, Declaration number 17 was attached to the aforementioned Treaty to this effect. There can be seen a very unambiguous perspective on the issue of supremacy of European Union law over disagreeing national law: ‘under the principle of supremacy, precedence must always be given to Community law over conflicting national law however framed and including national constitutional provisions'. As it is firmly known, the discussed principle of supremacy was established as well as developed in almost historical case of Costa v. Enel. In that case the collision between the law of the European Community and the Italian national law had been analysed. The conclusion of the European Court of Justice (hereinafter referred to as ‘ECJ') was based upon the limitation of sovereignty of each Member State and also on the transfer of powers from the States to the Community. The ECJ's core justifications for the discussed principle are ‘independence, uniformity and efficacy' of Community law. From this point of view, European Union law is ‘an integral part of ... the legal order applicable in the territory of each of the Member States'. The ECJ has developed arguments that would validate the conclusion about the...
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...Doctrine of vicarious liability The doctrine of vicarious liability generally operates within the law of torts. It has become well-established in English law and historically has been called “Master and Servant liability,” which clearly indicates the circumstances in which the doctrine becomes applicable in tort law. The general rule in tort law is that a person who authorises a tort will personally be liable for damage or harm as a result. However, vicarious liability defines the circumstances in which a person is liable for the torts of another without express authorisation or ratification. The most common example of vicarious liability is the liability of an employer for the torts of his employees committed in the course of employment. It is not necessary in such circumstances for the employer to have breached any duty that was owed to the injured party, and therefore it operates as strict or no-fault liability. It is possible that the injured party could be either an employee or a stranger, and the employer can be held vicariously liable in both situations. The most important element to establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the wrong done be connected to the employee's course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting “in the course of employment.” This criteria is essential, and requires a clear connection between the employment duties and the...
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...Refining the Misconception of Apostasy in Islam Dr. Zulkifli Hasan Deputy Chairman, International Affairs Bureau of ABIM Introduction Freedom of religion is frequently misunderstood by many and this includes the issue on apostasy. The misunderstanding of public and even Muslims community on the concept and legal position of apostasy has negated the image of Islam as a religion of peace. This is not surprising as there are numerous negative allegations upon the religion of Islam such as condemning it as barbaric and incompatible with modernity and human rights. This serious misconception should be rectified and in fact, it is a religious duty for every Muslim to portray a true picture of Islam and to response on any allegation and negative arguments upon this issue. In view of this negative phenomenon, this article aims to refine the misconception of apostasy in Islam and attempts to response the previous two articles published by the New Mandala entitled ‘An Exploration of the Concept of Apostasy in Islam’ by Joshua Woo Sze Zeng and ‘Malaysian Muslims Responses to Conversion’ by Norani Bakar whereby the former heavily relies on the essay written by Abdullah Saeed entitled ‘Freedom of Religion, Apostasy, and Islam’ and the online resources and the latter highlights the Malaysian Muslims response to apostasy with reference to HIMPUN initiative by several non-governmental organizations. Before presenting my arguments on the issue of apostasy in Islam, it is important to note that...
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...Separating the Law from Politics Unlike the President, or Congressmen, the Supreme Court is meant to remain a non-political entity. For this reason, each court member must represent an independent and a-political view, thus, all decisions stemming from the court ought to be born out of the Constitution. In theory, Constitutionalism within the court then, could be defined as the “the practice of ensuring that the spirit of the Constitution is the deciding factor in all court cases brought before SCOTUS”. (Pettit 2011) Shapiro explained that the court must create policy without violating neutrality, “not in terms of philosophic, jurisprudential, or historical correctness of the concept of neutral principles.” (Shapiro 1964) It is understood...
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