It's Not (Just) the Language: Development in a CBI Course for International Master of Laws Students

This Article seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a slowly changing, historically binding tradition; the custom view sees the authority of the common law as derived from its correspondence to contemporaneous norms and values; and the will view sees the authority of the common law (like that of all other law) as derived from the acts of a sovereign. These competing views imply different answers to various questions (such as the relationship between statutes and the common law, or the role of judges in the legal system). They also lead to very different attitudes towards the idea of a single, supranational common law: generally speaking, the first two approaches are more sympathetic to common law convergence than the latter two. I argue that these days English common law is close to the second, practice-based conception of common law authority, whereas American law adopts a combination of the third and fourth conceptions. This explains why American common law is largely uninterested in maintaining commonality with other common law jurisdictions, as well as many other differences between American and English common law.

A Realistic Theory of Law (Book Review)

The English legal system is based on the common law. Consistency and predictability are assured by prior decisions of the courts on similar matters establishing judicial precedent. The continuing role of the courts is to apply and develop the common law. Statute law is created by Parliament and takes precedence over common law, Parliament being the supreme legal authority of the United Kingdom. This supremacy has been affected by the UK’s membership of the European Union (EU), with European Law taking precedence over British Acts of Parliament (although it is still thought possible by many that Parliament could reassert its supremacy if it should so choose). The alternative legal tradition in most of Europe is derived originally from the legal system of Ancient Rome, also known as Civil Law (the latter not to be confused with English ‘civil law’ which refers to non-criminal legal matters – see below). Over the centuries the code developed as a body of international law, the ius commune and was later codified in many countries as their own national expression of law. In contrast to common law precedent, consistency is achieved by judicial application and interpretation of the code, rather than of prior case law decisions. The United Kingdom exported the English legal system to its colonies, including the United States, and the countries of the Commonwealth. Most retained it after independence. By similar colonial expansion many countries of Europe established Roman law as the predominant legal system. Other nations, including Turkey and Japan, adopted Roman law as the basis of their legal systems. A few countries have systems exhibiting a mixture of common and Roman law elements. A third international legal system is based on religious law, mainly the Sharia Law, derived from the Islamic faith, which exhibits many differences from Western systems, such as a prohibition on exacting interest. It is the basis of law in countries such as Saudi Arabia and Iran. Wales shares the same common law tradition as England. Scotland had developed its own more Roman law-based tradition and continues with this system today (see Chapter 2). The modern law in Northern Ireland is also based on the common law, a consequence of the Plantation in the seventeenth century, followed by the Union of Great Britain and Ireland in 1801. After Partition in 1922, Northern Ireland retained the common law system.

The No Child Left Behind Act of 2001 calls for a radical restructuring of the educational system, forcing low-performing schools and districts to make widespread changes in current assessment policies and instructional practices. Our previous research on low-performing students and students with disabilities indicates that significant gains in learning can be attained by intentionally aligning curriculum and instruction with assessment using an instructional approach called concept-based instruction. The purpose of this paper is to describe the positive impact of concept-based instruction on one English language learner in a rural school district. This research is part of a much larger effort at validating concept-based instruction as an instructional approach.

تلقی حداقلی از نهاد خسارت معضلی اساسی در حقوق ایران و نظام مسئولیت قراردادی ما است که دائما وسوسة یک پژوهش حقوقی در قیاس با سایر نظام‌های حقوقی و نیز تجربه­های مشترکی که در عرصة تجارت بین­الملل خلق شده را به جای می­گذارد. از این رهگذر، مرور معیارهای محاسبة خسارات و بازخوانی اندیشه­های ارائه­شده در دنیای مدرن (با نگاهی به مقتضیات اقتصادی در کشورهای درحال‌توسعه مانند ایران) ناگزیر می­نماید. بدین ترتیب، ضمن بررسی طرق ارزیابی خسارات ناشی از عدم انجام تعهد در نظام حقوقی انگلیس (در کنار تحلیل پژوهش‌های نوین در این حوزه) و نیز برخی از معتبرترین اسناد بین­المللی نظیر کنوانسیون بیع بین­المللی کالا، اصول قراردادهای تجاری بین­المللی، اصول اروپایی حقوق قراردادها و چارچوب ارجاع مشترک، سعی شده تا خوانشی از این معیارها ارائه شود که از تلقیات موجود در خصوص نهاد خسارت فراتر می­رود. با تحلیل آثار اقتصادی مبانی «اعاده»، «انتظار» و «اعتماد» و نیز نظریات مدرن­تری چون «قراردادهای ناقص» و «نقض کارآمد» (و نیز پژوهش‌های مبتنی بر تحلیل اقتصادی در اوایل قرن بیستم)، با توجه به مقتضیات بازار داخلی، به نظر می­رسد در کوتاه­مدت می­توان به مبنای قابل توجیهی چون «انتظار» توجه نشان داد.

Due to characteristics of the socialist legal system, in the process of development and integration, Vietnam needs to absorb the advantages of other legal systems. The paper analyzes the features and advantages of sources of the Anglo-American legal system and lessons for Vietnam.

This research is devoted to revealing the features of the modern British judicial discourse. In many ways, the modern legal discourse seems limitless. The scientific novelty is the comparison of the points of convergence of the British and French legal judicial discourse. In England, as in France, professional legal discourse uses professional vocabulary and a high language register. In addition, there is a tendency in the legal discourse of these countries to attach special importance to certain commonly used words. The presence of French terms is reminiscent of the role played by the Norman conquests in the development of English law. However, the specificity of the legal discourse in England is undeniable: not only its own concepts are developed in Common Law, but also through a multi-faceted and personalized discourse, which is not alien to the figurative form of expression, a pragmatic approach to the system of law is reflected, based not on an abstract code, but on inductive judgments. Thus, the English legal discourse is an emanation of the state foundations and cultural characteristics of England. The relevance of the study is explained by the growing interest in the study of language as a socio-cultural phenomenon of the era of globalization and the increasing importance of proficiency in a professionally-oriented language around the world.

This book has a comparatively original theme, or set of themes. It offers, first, a new way of analysing styles of legal reasoning - between more 'formal' and more 'substantive' styles. This analysis, which is worked out in some detail, is a major contribution to jurisprudence in its own right. The book then goes on to demonstrate in detail the differences in legal reasoning - and in the legal systems as a whole - between England and America, suggesting that the English is a much more 'formal' legal system and the American a more 'substantive' one. Thirdly, the book proceeds to explore in detail a wide range of cultural, institutional, and historical factors relating to the two legal systems, an exploration which is not only of value for comparative studies, but also confirms the argument in the first part of the book as to the relative 'formality' of the two legal systems.

Contents: Introduction My philosophy of law Part 1 Legal Reasoning: Principled decision-making and the Supreme Court A note on discovery and justification in science and law The logical force of arguments by analogy in common law reasoning Aesthetics and legal reasoning: a strand in American legal thought Preliminaries to the study of procedural justice Substantive interpretation and common law elaboration The legal analog of the principle of bivalence. Part 2 Legal Theories Jurisprudence and legal philosophy in 20th century America a major themes and developments Kelsen and the concept of 'legal system' Holmes's jurisprudence: aspects of its development and continuity Retroactive legislation and restoration of the rule of law The cultural defense Responsibility Faux pas. Part 3 Rights: Towards a theory of human rights Obligations to future generations The significance of rights language The primacy of welfare rights Rights, performatives, and promises in Karl Olivecrona's legal theory Name index.

This article elaborates on the relation between ethical casuistry and common law reasoning. Despite the frequent talk of casuistry as common law morality, remarks on this issue largely remain at the purely metaphorical level. The article outlines and scrutinizes Albert Jonsen and Stephen Toulmin's version of casuistry and its basic elements. Drawing lessons for casuistry from common law reasoning, it is argued that one generally has to be faithful to ethical paradigms. There are, however, limitations for the binding force of paradigms. The most important limitations--the possibilities of overruling and distinguishing paradigm norms--are similar in common law and in casuistry, or so it is argued. These limitations explain why casuistry is not necessarily overly conservative and conventional, which is one line of criticism to which casuists can now better respond. Another line of criticism has it that the very reasoning from case to case is extremely unclear in casuistry. I suggest a certain model of analogical reasoning to address this critique. All my suggestions to understand and to enhance casuistry make use of common law reasoning whilst remaining faithful to Jonsen and Toulmin's main ideas and commitments. Further developed along these lines, casuistry can appropriately be called "common law morality."

Over a decade ago, George Gretton noted of Scots property law that “one can live and work in a system and still massively fail to understand it in context.” Such peripheral blindness may be common across a number of legal traditions and systems. It is certainly found in the mixed, micro jurisdiction of the small island republic of Seychelles. This investigation marks the beginning of comparative research on Seychellois law and legal institutions in the hope of bringing them into greater focus.In particular it will consider Seychellois law in light of the traits, trends and tendencies characteristic of the ‘third legal family’, as defined by Vernon Palmer in his Mixed Jurisdictions Worldwide. For Palmer, the ‘third legal family’ includes those systems that experienced double colonisation, combining in one jurisdiction both continental (‘civil law’) private law and ‘common law’ public law with judicial institutions and procedural and evidential law reflecting significant assimilation of Anglo-American legal mechanisms. Determining the ‘traits’ of the Seychellois legal system will require an examination of its sources of law, substantive and procedural rules, legal infrastructure and institutions. Analysing its ‘trends’ will entail a description of its legal methodology and style. Examining its ‘tendencies’ will necessitate a look at the values, traditions and language underpinning the legal system. Finally, recent developments in Seychelles are considered to suggest the sustainability of its legal metissage. These developments include the establishment of a law school at the University of Seychelles, and the assistance of international legal experts to modernise and equip Seychelles for economic competitivity.Finally, an attempt is made to determine the taxonomical context of Seychellois law. Classifying this legal system is at best tentative especially in view of the polemic surrounding legal taxonomy and the lack of a universally accepted legal classification system. Moreover, whether the existing Seychellois legal system will be ‘hardy’ enough to remain viable is questionable.

PART I. THE LATE MIDDLE AGES: COINS AND THE LAW PART II. CIVIL LAW PART III. MONEY IN THE EARLY MODERN PERIOD: THE TRIUMPH OF NOMINALISM PART III. THE EVOLUTION OF CASHLESS PAYMENT: BANK MONEY PART IV. THE EIGHTEENTH AND NINETEENTH CENTURIES: THE EMERGENCE OF PAPER MONEY PART V. THE TWENTIETH CENTURY: FIAT MONEY

Creating Legal Space for Animal-Indigenous Relationships

Lawyers use a reasoning process known as legal reasoning to solve legal problems. Legal expert systems could potentially help lawyers solve legal problems more quick and adequately, enable students to study law at school or at home more easily, and help legal scholars and professionals analyze the law and legal systems more clearly and precisely.In 1992, Hajime Yoshino of Meiji Gakuin University started a “Legal Expert Systems” project. This “Legal Expert” project is funded by the Japanese Ministry of Education, Science and Culture and is scheduled to run from May 1992 to March 1998. Yoshino organized over 30 lawyers and computer scientists to clarify legal knowledge and develop legal expert systems.This project covers a wide range of technologies such as the analysis of legal knowledge, the analysis of legal rules on international trade (United Nations Convention on Contracts for International Sale of Goods (CISG)), legal knowledge representation, legal inference models, utility programs to develop legal knowledge bases, and user interfaces. This project, which ends in March 1998, will focus on developing comprehensive legal expert systems as the final product. In this issue, we present 12 papers written by “Legal Expert” project members.In this number, Hajime Yoshino gives are overview of the legal expert systems project, explaining its aims, objectives, and organization. Six papers that follow his introduction include three on case-based reasoning. Legal rules are given by ambiguous predicates, making it difficult sometimes to determine whether conditions for rules are satisfied by the facts given of an event. In such cases, lawyers often refer to old cases and generate hypotheses through analogical reasoning.Kaoru Hirota, Hajime Yoshino and Ming Qiang Xu apply fuzzy theory to case-based reasoning. A number of related systems have been developed, but most focus on qualitative similarities between old cases and the current case, and cannot measure quantitative similarities. Hirota et al. treat quantitative similarity by applying fuzzy theory, explaining their method using CISG examples.Ken Satoh developed a way to compute an interpretation of undefined propositions in a legal rule using adversarial case-based reasoning. He translated old cases giving possible interpretations for a proposition into clauses in abductive logic programming and introduced abducibles to reason dynamically about important factors in an old case to the interpretation suiting the user’s purpose.Yoshiaki Okubo and Makoto Haraguchi formalized a way of attacking legal argument. Assume that an opponent has constructed a legal argument by applying a statute with an analogical interpretation. From the viewpoint of legal stability, the same statue for similar cases should be applied with the same interpretation. We thereby create a hypothetical case similar to the case in question and examine whether the statue can be interpreted analogically. Such a hypothetically similar case is created with the help of a goal-dependent abstraction framework. If a precedent in which a statue has been applied to a case with a different interpretation – particularly complete interpretation – can be found, the opponent’s argument is attacked by pointing out the incoherence of its interpretation of the statue.Takashi Kanai and Susumu Kunifuji proposed a legal reasoning system using abductive logic programming that deals with ambiguities in described facts and exceptions not described in articles. They examined the problems to be solved to develop legal knowledge bases through abductive logic programming, e.g., how to select ambiguities to be treated in abductive reasoning, how to describe time relationships, and how to describe an exception in terms of the application of abductive logic programming to legal reasoning.Toshiko Wakaki, Ken Satoh, and Katsumi Nitta presented an approach of reasoning about dynamic preferences in the framework of circumscription based on logic programming. To treat dynamic preferences correctly is required in legal reasoning to handle metarules such as lex posterior. This has become a hotly discussed topic in legal reasoning and more general nonmonotic reasoning. Comparisons of their method, Brewka’s approach, and Prakken and Sartor’s approach are discussed.Hiroyuki Matsumoto proposed a general legal reasoning model and a way of describing legal knowledge systematically. He applied his method to Japanese Maritime Traffic Law.Six more papers are to be presented in the next number

In response to the globalization of the practice of law, law schools in the United States and other countries that are traditionally defined as belonging to the common law legal system have opened their doors to from different legal systems for whom English is a second language (ESL students or international students). Many of these programs have evolved without real assessment of the students' needs and how to meet those needs. After a number of resulting challenges, it became clear that in order to make such programs a success, law professors need to use special methodologies and strategies for teaching ESL students; they cannot use the approaches that have been successful with from common law countries. The essay focuses on two important discoveries relevant to this topic. First, it proposes teaching legal skills to ESL while using storytelling, a method that provides important background for one's understanding of the new legal system and culture. Second, it emphasizes the need for implementing complete immersion, a teaching methodology that will transform a student's analytical thinking into learning the law in a different language without any translation into her native language. The goal of both approaches is to assist the with their learning and comprehension of the legal analytical skills that are critical to the practice of law in the common law legal system and in a global multinational environment.