The reliability of experts in judicial fact-finding

The Day in Court: Legal Education as Sociolegal Research Practice in the Form of an Ethnographic Study

Teaching & Learning Guide for: The Legal History of the Ottoman Empire

A unique application of philosophical hermeneutics, literary theory and narratology to the practice of judging Combining her expertise in legal theory and her judicial practice in criminal law in a Court of Appeal, Jeanne Gaakeer explores the intertwinement of legal theory and practice to develop a humanities-inspired methodology for both the academic interdisciplinary study of law and literature and for legal practice. This volume addresses judgment and interpretation as a central concern within the field of law, literature and humanities. It is not only a study of law as praxis that combines academic legal theory with judicial practice, but proposes both as central to humanistic jurisprudence and as a training in the conduct of public life. Drawing extensively on philosophical and legal scholarship and through analysis of literary works, Gaakeer proposes a perspective on law as part of the humanities that will inspire legal professionals, scholars and advanced students of law alike. Key Features Focuses on the importance of judging for the humanities Combines legal theory and legal practice to show the importance of the bond of theory and practice in law and legal theory Incorporates the findings of philosophical hermeneutics and narratology for our continued thought on the position of law and literature, and law and the humanities as interdisciplinary movements Creates philosophical–hermeneutical building blocks for a methodology for the humanistic study of law as praxis Reflects on interdisciplinarity in legal studies against a backdrop of the tension between the natural sciences and the humanities Literary case studies include: Gustave Flaubert’s Bouvard and Pécuchet Robert Musil’s The Man without Qualities Dutch poet Gerrit Achterberg’s asylum poems Pat Barker’s Regeneration John Coetzee’s Disgrace Ian McEwan’s The Children Act Michel Houellebecq’s Atomised Juli Zeh’s The Method

Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.

Making Law Possible

Persons such as humans and corporations have the ability to seek redress before a court of law. The notion of legal personhood, however, seems to actualize the contested modern tension between nature and culture in most of current social and legal theory. More than discontinuous and self-contained beings, Amazonian forests embody sentient and mind-bearing relations involving humans and other-than-human beings such as plants, animals, and spirits. Can the forest speak law? Do forests endlessly require the mediation of human modes of legal representation? Overflowing the ontological stability of the person, forests teach a notion of legal agency beyond the human, the state, and the norm. In an attempt to overcome anthropocentric concepts of agency, Chapter 16 ethnographically engages with Amazonian legal cosmologies through forest minds and relations. It also highlights several questions other-than-human legalities entail in legal practice. A long road lies ahead before state law listens to indigenous and more-than-human legalities. Chapter 16 is an attempt to dwell with the law both as a particular kind of symbolic representation, that is, a changing set of positive norms and procedures, and as a non-symbolic form of representation conjuring other-than-human selves within the legal theory and practice.

Legal practice comprises the normative activities of constructing and maintaining social order with the aim of achieving equity and justice. In terms of content, it can be divided into three categories: intellectual legal practice, normative legal practice, and applied legal practice. As an important factor supporting legal practice, legal theory has a complex interactive relationship with legal practice. The effect of legal theory on legal practice is realized through the intermediary, carrier and bridging functions of the rationality, wisdom and ideas of legal practice. Developing the concept of the ideal legal life is the inherent mission and method of legal practice thought.

Philosophical pragmatism, like American Legal Realism, has various strains but the most characteristic ones are motivated by philosophical concerns different from the intellectual concerns that motivated Legal Realism. Legal Realism reacted to classical legal thought, pragmatism reacted to Cartesianism. While there may be some parallels between classical legal thought and Cartesianism – and hence possibly some between schools of thought reacting to each – classical legal thought and Cartesianism occupy two different planes. The battle between classical legal thought and American Legal Realism is internecine. Philosophical pragmatism bears on that fight more globally. If pragmatist philosophical methods and tenets bear on law, legal theory, and legal practice, it will bear on both classical legal thought and American Legal Realism, the objects of both those schools of thought. Philosophical pragmatism draws our attention to the significance of social practices of all kinds. It does not advocate any one way of construing a social practice; indeed, that sort of methodological unitarianism would be inconsistent with the pragmatist approach to understanding. What pragmatism teaches those interested in law and legal practice is that legal theory is not prior to legal practice; and that legal practices themselves should be the point of departure for giving any more generalized account of how the practice works.Most previous legal scholarship on law and pragmatism misses the point about philosophical pragmatism's commitment to fallibilism rather than skepticism, and therefore fails to consider the significance of this shift for using pragmatism to understand legal practices, especially adjudication. This is highly evident in the conventional treatment of Oliver Wendell Holmes Jr and Benjamin Cardozo as both pragmatists. Using a representative decision of each, I argue that Holmes is more a radical skeptic than a pragmatist, while Cardozo works in true pragmatist fashion.

This article explores the domain of legal analysis and its methodologies, emphasising the significance of generalisation in legal systems. It discusses the process of generalisation in relation to legal concepts and the development of ideal concepts that form the foundation of law. The article examines the role of logical induction and its similarities with semantic generalisation, highlighting their importance in legal decision-making. It also critiques the formal-deductive approach in legal practice and advocates for more adaptable models, incorporating fuzzy logic, non-monotonic defeasible reasoning, and artificial intelligence. The potential application of neural networks, specifically deep learning algorithms, in legal theory is also discussed. The article discusses how neural networks encode legal knowledge in their synaptic connections, while the syllogistic model condenses legal information into axioms. The article also highlights how neural networks assimilate novel experiences and exhibit evolutionary progression, unlike the deductive model of law. Additionally, the article examines the historical and theoretical foundations of jurisprudence that align with the basic principles of neural networks. It delves into the statistical analysis of legal phenomena and theories that view legal development as an evolutionary process. The article then explores Friedrich Hayek’s theory of law as an autonomous self-organising system and its compatibility with neural network models. It concludes by discussing the implications of Hayek’s theory on the role of a lawyer and the precision of neural networks.

Reviewed by: Legal Pragmatism: Community, Rights, and Democracy Thomas P. Crocker Legal Pragmatism: Community, Rights, and Democracy. Michael Sullivan. Bloomington: Indiana University Press, 2007. Pp. xii + 159. $55.00 h.c. 978-0-253-34887-6; $19.95 pbk. 978-0-253-21906-0. American pragmatism has had considerable influence on philosophical thought over the course of the past century. Although pragmatism’s focus, in the hands of those following in the tradition of William James and John Dewey, has been on solving social problems by concentrating on the practical consequences of knowledge, belief, and action, pragmatism has had only a limited impact in one important domain of social practice—the law. Legal realism, as a distinctive and dominant American jurisprudence developed during the first half of the twentieth century, shares affinities with pragmatism. Legal realism, like pragmatism, eschews natural or transcendent notions of law and focuses instead on the practical elements of actual legal and judicial practice as they are embedded in social institutions, ideologies, beliefs, and practices. As Justice Oliver Wendell Holmes noted, the fallacy is to think “that the only force at work in the development of the law is logic” (“The Path of the Law,” Harvard Law Review 10 [March 1897]: 465). Even though in an important sense we are all legal realists now, legal realism, having unmasked myriad ways in which legal practice functions in everyday experience, has not offered positive grounds for the critical reconstruction of law. Michael Sullivan’s book brilliantly fills this gap by demonstrating how pragmatism helps us understand and solve practical problems in law and legal theory. Moreover, Sullivan offers a robust account of legal pragmatism that avoids both the banal commonsense version of pragmatism offered by Judge Richard Posner and the chastened vision of pragmatism offered by Richard Rorty. Sullivan’s book provides a pragmatic defense of rights that focuses on how we “understand community, individualism, and the value and place of each within democracy” (2). Because rights understood pragmatically are “self-conscious, social efforts to foster individual growth” (98), law itself becomes a social tool that can enable individuals to realize their capacity to participate in the construction of shared community structures. In American legal practice, we often turn to judges and courts to vindicate rights claims against overreaching majorities. This practice, however, creates an apparent paradox. Although we prize democratic decision making, we employ rights claims before unelected federal judges in order to override decisions made by majorities, creating what Alexander Bickel first [End Page 321] identified as the “counter-majoritarian difficulty.” This nettlesome “difficulty” requires an account of the role of judicial review in a democratic society. Amplifying a solution articulated by Bruce Ackerman, Sullivan develops an account of “American democratic subjectivity” (105) to argue that once we recognize that the present is always historically and contextually situated, we expect judicial practice to do more than fulfill the wishes of present democratic majorities. The “we” constituted as “We the People” must continually engage in the process of “working out the question of our own self-constituting and becoming” (108). As the ultimate legal authority on matters of constitutional self-description, the Supreme Court regularly confronts contrasting narratives and histories about our democratic subjectivity. When the Court provides a particular account of this subjectivity, “we” can always mobilize as disaffected communities to challenge the description of who we are or have become. Thus, when the Court overrides a piece of majoritarian legislation, it does not do so on the basis of some narrow ideal of who a present majority happens to be; rather, as Sullivan argues, the Court engages in an intertemporal conversation that asks each participant to reflect on the values and identities at stake and to offer historically situated alternatives to what constitutes this broader democratic subjectivity. Within this conversation, the central questions are those at the heart of any pragmatist project addressing, in Dewey’s terms, “the public and its problems”: how to “facilitate ever-greater self-expression and self-actualization of individuals” (28) by empowering “intelligent decisionmaking within the present community by rendering the . . . past explicit while laying out possible futures” (117). Sullivan’s pragmatic solution is both simple and elegant. Recognizing that...

Despite the glaringly obvious fact that both legal theory and legal practice are, and have always been, heavily dependent upon the tools of rhetorical and linguistic analysis, no coherent or systematic account of the relationship of law to language has ever been achieved. Even worse, the occasional exercises that modern jurisprudence has conducted in the direction of normative linguistics, in studying the 'grammar' of law, or the philosophy of ordinary language, in outlining the semantics of rule application, have been exercises aimed at asserting or defending the positivistic view that law is an internally defined 'system' of notional meanings or of specifically legal values, that it is a technical language and is, by and large, unproblematically, univocal in its application. Despite the linguistically dubious nature of the assumptions regularly made by formalistic (deductive) theories of adjudication, lawyers and legal theorists have successfully maintained a superb oblivion to the historical and social features of legal language, and rather than studying the actual development of legal linguistic practice, both spoken and written, have asserted deductive models of law application in which language is the neutral instrument of purposes peculiar to the internal development of legal regulation and legal discipline. What has been consistently excluded from the ambit of legal studies has been the possibility of analysing law as a specific stratification or 'register' of an actually existent language system, together with the correlative denial of the heuristic value of analysing legal texts themselves as historical products organised according to rhetorical criteria.

Objective: the paper aims to define the problems juridical theory and practice face with the progress of AI technologies in everyday life and correlate these problems with the human-centered approach to exploring artificial intelligence (Human-Centered AI).Methods: the research critically analyzes the relevant literature from various disciplines: jurisprudence, sociology, philosophy, and computer sciences.Results: the article articulates the prospects and problems the legal system confronts with the advancement of digital technologies in general and the tools of AI specifically. The identified problems are correlated with the provisions of the human-centered approach to AI. The authors acknowledge the necessity for AI inventors, as well as the owners of companies participating in the race to develop artificial intelligence technologies, to place humans, not machines, into the focus of attention as a primary value. In particular, special effort should be directed towards collecting and analyzing high-quality data for the organization of artificial intelligence tools development, taking into account that nowadays, the tools of AI are as practical as the data on which they are trained are effective.The authors formulate three principles of human-centered AI for the legal sphere: 1) a human as a necessary link in the chain of making and executing legal decisions; 2) the need to regulate artificial intelligence at the international law level; 3) formulating “a taboo” for introducing the artificial intelligence technologies.Scientific novelty: the article manifests one of the first attempts in the Russianlanguage scientific literature to outline the prospects of developing humancentered AI methodology in jurisprudence. Based on an analysis of special literature, the authors formulate three principles of including artificial intelligence into juridical theory and practice according to the assumptions of a human-centered approach to AI.Practical significance: the principles and arguments the article advances can be helpful in the legal regulation of artificial intelligence technologies and their harmonious inclusion into legal practices.

Introduction. The article considers one of the most important issues of constitutionalization of EU law, namely the processes of internal structuring of the constitutional law of this supranational entity. The author substantiates the opinion that together with the expansion of the EU's competence and the strengthening of the processes of interstate integration within the framework of the EU constitutional law, the institution of European governance is gradually crystallizing. In the system of constitutional law of the EU, this institution occupies a place similar to that in national legal systems occupies the institution of the form of government. The Institute of European Governance reflects the modus operandi (from the Latin "method of action") of the EU as a supranational entity, which has significant specifics in terms of institutional and functional organization and mechanism for developing and implementing government decisions. The process of forming European governance and filling it with specific content takes place within the general process of "setting political and legal standards", based on the latest advances in political and legal theory and practice and reflecting the highest requirements for quality governance and EU rights and freedoms. Summary of the main research results. Today the European Union has accumulated significant experience in reforming and improving public administration and public service, although these areas are not directly regulated by the acquis communautaire. Therefore, today the acquisition in the field of public administration and public service organization mainly takes the form of "soft law" and "soft standards" - White Papers and communications of the European Commission, recommendations of conferences of ministers responsible for public administration and / or heads of departments of public services etc. A systematic analysis of EU legislation suggests that the most significant distinguishing features of European governance are that it is based on the principles of good governance, multi-level (including network) governance, the rule of law and respect for human rights. Initially, European governance had the character of an intersectoral principle that determined the order of organization and activities of public authorities within the EU in all areas of the functioning of public administration, but after the adoption of the Charter of Fundamental Rights of the EU and giving it the force of the founding treaties of the EU (i.e., giving it essentially the status an integral part of the unwritten constitution of the EU), where one of the fundamental human rights is the right to proper governance, this principle is actually brought to the level of the foundations of the constitutional law of the EU. Conclusions. The conclusion is substantiated that European governance from the point of view of the constitutional law of the EU means good, multi-level, subordinate to the law and “respectful of human rights” governance. The transformation of the concept of European governance into the EU legal system is a vivid example of the constitutionalization of this supranational entity. In the system of constitutional law of the EU, European governance as a political and legal concept has become a fundamental constitutional principle, one of the foundations of the constitutional order of the EU. Ukraine's course towards European integration leads to the need for full implementation of the requirements of European governance in political and legal practice and national legislation.

Table of Cases - Preface - Introduction: Law and Language - PART 1 LINGUISTICS AND LEGAL THEORY - The Science of Language - The Language of Legal Faith - The Role of Linguistics in Legal Analysis - PART 2 LEGAL DISCOURSE - Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language - Law as Social Discourse I: A Topology of Discourse - Law as Social Discourse II: Legal Discourse - Conclusion: Legal Theory and Legal Practice - Notes and References - Bibliography - Index

The decision of local people's congresses to discuss major issues is a basic right granted to local people's congresses by the Chinese Constitution and laws. However, in practice, the implementation of the power of deliberation of major issues by local people's congresses is worrying. By applying the theory of Chinese traditionalism and unity in the theory of law, the theory of “sovereignty in the people” in the social contract theory of Western natural law school, Austin's “legal command theory” in Western positivist law and Hart's “recognition” “Rules theory” to argue that the integrity of rights necessarily involves the dual factors of decision-making and execution. At the same time, the existence and operation of the law always reflects the development of the political system. The realistic political situation requires us to make more precise and meticulous refinement of the external form and specific technical links of the legal system, and to coordinate the rules to make up the legal theory and Conflicts and conflicts in legal practice help to reform social institutions.