Contemporary Jurisprudence Research Articles

مناهضة العنف الأسري كوردستان العرق أنموذجا دراسة فقهيّة تقويميّة

The following article tries to trace two important issues of act relating to domestic violence in Kurdistan, Iraq. This study denotes the study of contemporary jurisprudence regarding the issue of beating and coercion in the family. It sparked controversy in the perspective of the law and sharia law. This issue then be viewed from the concept of gender. The aim of this study is to clarify the concept of domestic violence and to indicate the issues contained in the legislation in jurisprudence viewpoint. Inductive approach used by researchers to collect scientific data in this research as well as analysis of other assistance. Results of this study have revealed that sometimes there are problems in the structure of the language, as well as contradict using of terminology. In addition, the lack of precision in the preparation draft of act which opposed to some provisions of sharia. This requires that the Kurdistan regional government to review the issue of requalification from the perspective of jurisprudence, law, languages, psychology and sociology.

Balkanizing Jurisdiction: Reflections on Article IX of the Genocide Convention in Croatia v. Serbia

AbstractWhen it first encountered the Genocide Convention in its 1951 Advisory Opinion, the International Court of Justice recognized that the treaty reflected the ‘most elementary principles of morality’. Its provisions were to be read broadly, in light of the Convention's transcendent object and purpose. This expansive approach stands in contrast with the narrow interpretation of Article IX in the recent Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This article is a commentary on the retroactive obligation to punish genocide under the Convention with regard to acts occurring prior to its entry into force for that state. It concludes that the Court's narrow interpretation of its jurisdiction ratione temporis raises wider questions for its contemporary jurisprudence, namely, whether it will interpret human rights treaties enshrining fundamental values any differently than other international instruments.

On the Interpretation of Religious Freedom: A Conversation with Ronald Dworkin

The death of Ronald Dworkin in 2013 was an immense loss. His moral, political, and legal theories constitute an exceptional academic legacy, and through his reflections on issues in contemporary politics and jurisprudence, he leaves a similar gift to our public life. He persistently—and, I believe, rightly—advocated conceptions and analyses in which politics is responsible to moral principles and, moreover, moral principles that are universal, and I join many who were often persuaded by his address to specific public problems. In recent books, Dworkin discussed more fully how democratic politics properly relates to religion and thus how a constitutional principle of religious freedom should be interpreted. The debt we all owe to him counsels those whose thought about democracy includes express interest in that constitutional provision to consider critically his account of it. Another understanding is, I believe, more coherent. This essay will not pursue how the alternative it commends provides a better context in which to affirm many of the political sensibilities Dworkin advocated, but that wider purpose is the background for the engagement here with him. Further, I will in this conversation dramatically abstract from his detailed arguments, although I intend sufficiently to capture his proposal that I do not neglect something relevant to the critique. Also, I will not seek to relate his more recent discussions to earlier work in his massive legacy but, rather, will focus on three publications: Is Democracy Possible Here? Principles for a New Political Debate, Justice for Hedgehogs, and his final book, Religion without God. In what follows, then, I will first summarize Dworkin’s

Gender and the Analytical Jurisprudential Mind

Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.

The Forces of Law: Duty, Coercion and Power

This paper addresses the question of the relationship between law and coercive force. It defends, against Frederick Schauer’s claims in his book, The Force of Law, the following propositions:(a) The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. (b) Even if coercion is not part of the concept of law, coercion is connected to law in a variety of ways. These are amply recognized in contemporary jurisprudence. (c) We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. This question is not a matter for empirical generalization or bare stipulation. It requires an explanation of the concept of coercion.

Is Law Grounded in Joint Action?

One of the central theses in contemporary jurisprudence is that law is grounded in a social practice. It is far from being clear, however, what the characteristics of this practice would be. Starting from the discussion of the social practice thesis recently provided by Carlos Bernal-Pulido, this article critically considers whether the practice at the foundation of law can be seen as a form of joint action based upon collective intentionality and common knowledge. The paper reconstructs the idea of law as a social practice in the works of John Austin, Herbert Hart and Scott Shapiro, and shows that an accurate reading of these works leads us to cast doubt on the persuasiveness of Bernal-Pulido’s proposal. The practice at the foundation of law, if any, cannot be seen as a form of joint action without making several aspects of law puzzling or unaccountable. Finally, the article tries to shed some light on the contemporary debate about the normativity of law by distinguishing the different theoretical problems that this debate actually tackles.

Exclusive Legal Positivism and Legal Autopoiesis: Towards a Theory of Dialectical Positivism

In spite of a relatively short period of popularity in the 1980s–1990s, legal autopoiesis is not amongst the most debated theories in contemporary jurisprudence. On the methodological side, this loss of interest was, to some extent, predetermined by its sociological origins, metaphorical apparatus, the complexity of Niklas Luhmann’s theory of social systems and its stylistic density.1 From the normative perspective, the gist of criticism and disapproval among legal scholars could be narrowed down to their scepticism towards the autopoiesis’ motto: law as a self-referential system. Taken superficially, the self-referential character of law breaks the ‘taboo of circularity’,2 endangering in some sense the very idea of democratic governance. It would be a trivial task, however, to demonstrate that the closeness of the system of legal norms has an operational character and is intrinsically connected to its openness. This issue has been explicitly articulated by the founders of legal autopoiesis in their reply to accusations that autopoiesis is a revival of some type of autarchic solipsism of law I do not intend in this paper to trace the evolution of autopoiesis in law and its eventual decline. My primary objective is to offer dialectical account of the discussion about the essence of law, as takes place between legal positivism and non-positivism using autopoietic analysis of law as a means in support of legal positivism. I develop my arguments in 4 sections. After the introductory notes, which set the overall tasks of the paper, Section II provides a brief description of the theory of social systems, analysing the principle of autopoiesis and its repercussion on the system of law and highlights the main research agenda of exclusive positivism (I will also use the term exclusivism). Section III articulates in more details the main problems related to law’s incorporation of morality, providing a theoretical background for the theory of dialectical positivism (I will address the meaning of dialectics and dialectical positivism in Section IV), which is subsequently applied in Section IV to the issues of the indeterminacy of the law, legal interpretation and argumentation.

The 2014 Update to the OECD Commentary: A Targeted Hybrid Approach to Beneficial Ownership

'This article argues that application of beneficial ownership test in Articles 10 to 12 of the OECD Model Convention is not a straightforward question of legal or economic approach. Rather, it is a matter of balance between the two that simultaneously ensures legal certainty and does not countenance blatant treaty shopping. Accordingly, the article first explores the legal basis and main drawbacks of the two approaches when applied irrespective of one another. Basing on this analysis, the author advocates a targeted hybrid approach which is to be regulated by the relative abusiveness of the tax structure in question. The hybridity is manifested through the reliance on the economic approach as an exception to the legal approach in egregious cases, i.e., targeted cases. It is submitted that the relevant threshold of abuse can be determined on the basis of the 2014 update to the OECD Commentary on beneficial ownership. This conceptualization cuts through the ostensible inconsistencies of the contemporary jurisprudence and reveals the implicit public rationale guiding actions of tax authorities and court decisions'.

System of exceptions to the application of the poisonous tree doctrine

The work is divided into five chapters. In the introduction, the author emphasizes that the issue of illegal evidence, especially the over-effect of the excluded evidence, one of the most complex problems of modern theory and practice of criminal proceedings. The second chapter deals with the general issues of illegal evidence. The third chapter summarizes the fruit of poisonous tree doctrine. Author emphasizes that American jurisprudence has built a number of exceptions which seeks to limit the effects of rigidity and strictness of this theory. Chapter four is the central part of the work and is dedicated to the processing of exceptions to the fruit of poisonous tree doctrine. The fifth chapter is the conclusion to which the author notes that instead the fruit of poisonous tree doctrine in contemporary American jurisprudence almost exclusively exceptions apply and that its practical importance is far lower than most European theorists considered.

O relacji pomiędzy filozofią nauki a jurysprudencją w świetle problematyki naturalizacji prawa

Artykuł dotyczy wybranych aspektów relacji pomiędzy współczesną filozofią prawa oraz filozofią nauki. Zagadnienie to wydaje się szczególnie istotne w świetle wzrostu znaczenia podejścia naturalistycznego w naukach prawnych, następującego w związku z dynamicznym rozwojem nauk o zachowaniu. Dzięki analizie ich osiągnięć możliwe jest spojrzenie z interesującej perspektywy na istotne zagadnienia rozważane w ramach filozoficznoprawnego dyskursu. Nurtem, którego przedstawiciele uznają badanie faktów za najistotniejszy element refleksji nad pojęciem prawa, jest realizm prawny. Konsekwencją prezentowanego przez niektórych jego przedstawicieli nacisku na szeroko rozumiane analizy empiryczne w jurysprudencji jest wzrost znaczenia problemów rozważanych przez filozofów nauki dla filozofii prawa. Kilka z nich zostało wskazanych w tekście.

Is Law Grounded in Joint Action?

One of the central theses in contemporary jurisprudence is that law is grounded in a social practice. It is far from being clear, however, what the characteristics of this practice would be. Starting from the discussion of the social practice thesis recently provided by Carlos Bernal-Pulido, this article critically considers whether the practice at the foundation of law can be seen as a form of joint action based upon collective intentionality and common knowledge. The paper reconstructs the idea of law as a social practice in the works of John Austin, Herbert Hart and Scott Shapiro, and shows that an accurate reading of these works leads us to cast doubt on the persuasiveness of Bernal-Pulido’s proposal. The practice at the foundation of law, if any, cannot be seen as a form of joint action without making several aspects of law puzzling or unaccountable. Finally, the article tries to shed some light on the contemporary debate about the normativity of law by distinguishing the different theoretical problems that this debate actually tackles.

The Legal Trial And/In Documentary Film

This article proposes to extend the work of law and film scholars, such as Carol Clover and Jennifer Mnookin, by looking at how juridically themed documentary films use the legal trial as both a platform and a structuring device to contest the evidentiary value of testimony, bear witness to the performance of law in our culture and engage in a social debate about flaws in contemporary jurisprudence. Because non-fiction film – with its presumed indexical relationship to reality and its attendant claims to authenticity – is often seen as having a privileged relationship to truth, the ethical and epistemological stakes of these visual representations are heightened. Consequently, the expectations we bring to the juridical documentary (in terms of its truth-telling responsibilities) make it a particularly loaded space for analysing the ethical and epistemological responsibilities of documentary representation as well as for revealing truths about the legal process and the ordering of a just society. Thinking through the ways in which contemporary trial documentaries differently approach the question of their subjects' guilt allows us to reflect on how the juridical documentary refracts the legal trial's own truth claims. These documentary films demonstrate that, while the documentary and the legal trial might share an epistemological affinity based on shared principles of evidence, narrative and argument, the way in which the trial itself is thematized as both a discourse and a practical purveyor of justice in documentary influences how we come to understand the law in action.

On Property Theory

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The standard normative juridical principle is to assign or impute legal responsibility according to de facto responsibility. It is given a historical tag of being but the basis is contemporary jurisprudence, not historical exegesis. Then the fundamental theorem of the property mechanism is proven which shows that if (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., Hume implies Locke. As a major application, the results in their contrapositive form, Locke implies Not Hume, are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an employment enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (de facto responsible human action cannot be transferred from one person to another — as is readily recognized when and employer and employee together commit a crime).

Welfarist and Imperial: The Contributions of Anticruelty Laws to Civilizational Discourse

This article excavates the role that anticruelty statutes played in civilizational thinking both in the metropole and in the colonies, and the residual impact of their early civilizational rationale in contemporary jurisprudence. In doing so, it explores how laws directed at cruelty to animals have helped sustain a discourse of civilization that cuts across and animates hierarchical logics of race, religion, class, and gender. This analysis, then, underscores a different problem with anticruelty laws than what animal law scholars have emphasized. This more familiar critique stresses the inefficacy of these laws in preventing animal suffering, labeling them “welfarist” because of their mandate to regulate animal exploitation rather than prevent it. The analysis adds to this critique, pointing out the severe shortcomings of anticruelty laws by focusing on the imperial underpinnings of these welfarist laws. The article first discusses the emergence of anticruelty statutes in the common law and their impact in reinforcing the civilizing mission with respect to both domestic and colonial populations through a legislative purpose that can be properly understood only by reference to race, religious, class, and gender dynamics. The article then reveals how the civilizing purposes of anticruelty statutes continue to shape contemporary anticruelty jurisprudence in ways that domesticate populations marginalized by race, class, culture, and religion. In tracing the contributions of anticruelty laws to civilization discourses, the analysis highlights the selective register by which these laws function, namely, effectively targeting minoritized practices and immunizing majoritarian ones. In highlighting the imperial attributes of welfarist laws, the article seeks to contribute to the literature exploring the intersections between speciesism and other forms of socially constructed difference.

Any Which Way But Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule'

This note elaborates upon this difference of opinion as it relates to the issue of and self-defense. Of the two perspectives, I am more in agreement with Professor Horowitz. The law could profitably use finer distinctions, and the line between justification and excuse would be far more useful if it were clearer. To explore the issues raised by the question of retreat, this note will examine the evolution of the rule, from its origins in the medieval common law of England through contemporary applications of it and its twin in the decisions of American courts. For the sake of focus, the inquiry will center purely on the issue of the duty to Equally important questions -- such as the possibility of an exception to the duty when a person is attacked in his or her dwelling, and the extremely controversial co-tenant exception to this castle doctrine -- will of necessity be slighted in the present inquiry.Part II will discuss the historical roots of the rule as formulated in the common law of England. Part III will show how the rule was modified in the United States during the nineteenth century, drawing on leading cases to illustrate the roots of the American rule of no retreat. Part IV will particularize the interpretive strategies American courts have evolved in their application of the new American jurisprudence, then illustrate these strategies by analyzing selected cases in three court systems: the United States Supreme Court, which adopted the no retreat rule in 1895 but has been ambivalent in its subsequent applications of the rule; Alabama, which adopted the rule from the common law in 1847 and has remained officially faithful to it ever since, elaborating upon its meaning in an unusually rich jurisprudence; and Illinois, which in 1902 followed the lead of the Supreme Court in adopting the American rule of no retreat and has consistently been counted as a no retreat jurisdiction ever since. The conclusion will tentatively suggest specific reforms to contemporary jurisprudence of and self-defense.

Reconstructing Fuller’s Argument Against Legal Positivism

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence.

Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.

Crisis and authority in early modern Ashkenaz

The social and intellectual foundations of medieval Judaism were shaken by a series of developments that included the invention of printing, advances in scientific knowledge, humanism, and the commercial revolution. In early modern Ashkenaz, the ensuing crisis centered on questions of ritual transmission and leadership. Minhagbucher composed in seventeenth-century Worms and Frankfurt urged the preservation and reinstatement of medieval customs relating to synagogue worship and rituals practiced in the home, while in some cases newer customs were also incorporated. However, the writings of Rabbi Ya’ir Ḥayyim Bacharach were more far-reaching in response to the crisis of authority, as is evident in his forthright independence in matters of ritual and law. Customs could be considered authentic, in his view, provided they were textually based, were proven to be historically reliable, and enjoyed popular consent. His decision to consult kabbalistic sources—a departure from the resistance Kabbalah had encountered in early modern Ashkenaz—rested in part on the theological appeal of mysticism. Reflecting contemporary political philosophy and jurisprudence, Bacharach’s unequivocal endorsement of lay communal authority hinged on its elected status and on the legitimacy of law founded on principles of equity and justice.

Human dignity's false start in the Supreme Court of Canada: equality rights and the Canadian Charter of Rights and Freedoms

Human dignity functions largely as a rhetorical trope in contemporary human rights jurisprudence. In 1999 the Supreme Court of Canada began a jurisprudential experiment in which the concept of dignity was elevated to the status of a legal rule in interpreting the equality rights provision of the charter. Equality rights challenges to laws and programmes were to be judged largely on the basis of the feelings of affront experienced by claimants. This dignity test proved to be highly subjective and hence judicially unmanageable. While the politics of human dignity are effective precisely because rights claims are emotionally charged, a human dignity test based on feelings of affront has operated poorly in the Canadian constitutional context. Canada serves as a cautionary tale in the maturation and institutionalisation of the human rights movement.

The Strasbourg Court and Minority Groups: Shooting in the Dark or a New Interpretive Ethos?

Construed around the broad areas of pluralism, identity and non-discrimination, the contemporary jurisprudence of the European Court of Human Rights on minority groups reflects a view of the 1950 Convention which is arguably more complex than the one projected onto the European legal landscape at the time of its adoption. This article takes stock of past and recent trends and reflects on a range of fundamental questions which are likely to define the Court’s approach to the field. I argue that the Court’s persuasiveness will hinge on a modicum of methodology – a new interpretive ethos – as to how to handle relevant claims, and what is at stake when it comes to considering them.