Coherence Of Law Research Articles

Privacy and defamation in ZXC: some concerns about coherence

ABSTRACT This contribution considers the way that defamation law features in the Supreme Court's analysis of the misuse of private information tort in ZXC v Bloomberg LP. The court, it is argued, is markedly reluctant to accept that the operation of the privacy action is impacted by the law of defamation. Exploring the question of damages helps to show that this approach raises concerns about the law's coherence and could lead to significant difficulties in future cases.

Coherence in law: A way to stimulate the transition towards a circular economy? A critical analysis of the European Commission's aspiration to achieve full coherence between chemicals legislation and waste legislation – and product legislation

This article examines the (lack of) coherence between the legislative fields that govern the life cycle of materials and products and thus are relevant to the transition towards a circular economy in the EU: EU chemicals, product and waste legislation. After examining the notion of coherence in law, it provides insight into the role of coherence in EU chemicals, product and waste legislation in light of the transition towards a circular economy. The article examines the (possible) issues that exist at the interface between these three legislative fields by reviewing literature and EU policy documents and looks into the relation between these issues and the (lack of) coherence between EU chemicals, product and waste legislation. It is argued that, when looked at in light of the transition towards a circular economy, several issues might be related to a lack of coherence. Nonetheless, the aspiration to achieve full coherence should be looked at critically.

Solving the impossible: the puzzle of coherence, consistency and law

Though considerable claims are made for the use of coherence in law, its meaning is routinely taken to be elusive, controversial or even mystical. Some argue that defining coherence is logically impossible. This is surprising at best, and at worst should prompt serious alarm. It is generally agreed, at least, that consistency provides one necessary condition for coherence, though the list of additional elements required is keenly disputed. I pitch the dispute further back, and argue that the agreed-upon relation with consistency is unsustainable and damaging, and arises only because of a striking methodological oversight. This oversight accounts for and resolves the perceived impossibility and complexity of coherence. Freed from consistency, I argue for coherence just as 'sticking together', and close by considering the implications of my analysis for writing that presently presses coherence into legal service.

Coherence in technology law

ABSTRACTTechnology law is emerging as a distinct field of law among the canon of more established law subjects. This paper examines the requirements for coherence in law subjects and begins the process of classifying the field of technology law. It examines historical struggles for coherence in health law and environmental law in order to distil a methodology that will guide the analysis. The paper sets out a menu approach that refines some of the unifying principles of technology law that mark it out as a distinct field. The methodology is then tested against the ostensibly disparate papers that can all be said to be on ‘technology law’ in the Oxford Handbook on Law, Regulation and Technology. The paper concludes by directing further work to more fully classify this emerging field.

Coherence in Technology Law

Technology law is emerging as a distinct field of law among the canon of more established law subjects. This paper examines the requirements for a coherence in law subjects and begins the process of classifying the field of technology law. It examines historical struggles for coherence in health law and environmental law in order to distill a methodology that will guide the analysis. The paper sets out a menu approach that refines some of the unifying principles of technology law that mark it out as a distinct field. The methodology is then tested against the ostensibly disparate papers that can all be said to be on ‘technology law’ in the Oxford Handbook on Law, Regulation and Technology. The paper concludes by directing further work to more fully classify this emerging field.

Registered Paramedics, Insurance and First Aid – Looking for Coherence in Law

This article challenges the view that professional indemnity insurance is required when paramedics provide first aid at an unexpected accident or medical emergency while not at work. It is argued that an interpretation of ‘practice’ that includes emergency first aid would be inconsistent with the policy of the law reflected in ‘Good Samaritan’ legislation and would be contrary to the public interest. The provisions of the Registration Standard ‘Professional Indemnity Insurance’ are linked to judicial decisions on what it means to practise a profession to demonstrate that an interpretation of ‘practise’ that excludes first aid is consistent with the law. The Paramedicine Board of Australia and the Australian Health Practitioner Regulation Agency should give a clear statement that providing first aid at an unexpected health emergency is not and will not be considered professional practice by an off-duty registered health professional who is at the scene of the emergency, simply by coincidence.

Zasada kumulacji w podatku od spadków i darowizn – struktura głęboka kontra granica językowa wykładni

Zasada kumulacji w podatku od spadków i darowizn jest, jako koncepcja prawna, instytucją o stuletniej historii. Ze względu na zmiany o charakterze legislacyjno-systemowym interpretacja przepisów ustanawiających jej byt prawny napotyka na duże trudności. Traktowanie granicy wykładni językowej bezwzględnie prowadzi do niemożliwego do zaakceptowania rezultatu.
 Rozwiązaniem zapewniającym prawidłowe funkcjonowanie zasady kumulacji jest wykroczenie poza granicę językową wykładni, tak by wynik wykładni pozostawał w zgodzie z głęboką strukturą ustawy podatkowej. W przełamaniu granicy językowej może pomóc metoda wykładni prawa uwzględniająca problem kontekstualizmu oraz koherencję prawa i struktury prawno-ekonomiczne związane z ustawą podatkową.

Judicial Review of Government Actions in China

China’s laws and policies on the judicial review of government actions are often used as a bellwether of the government’s attitude towards the rule of law. Accordingly, in gauging the direction of legal reform in the Xi Jinping era, recent media reports have highlighted changes in litigation against government agencies as evidence of positive movement towards the greater rule of law, albeit only contradicted by other evidence of political repression and increasing authoritarianism. We provide a selective review of changes in China’s administrative litigation system in the last few years, giving special attention to (i) the amendment in 2014 of the Administrative Litigation Law (ALL), (ii) a 2018 Supreme People’s Court Interpretation of the same statute, and (iii) dramatic changes in empirical patterns of litigation since 2013. In our view, the question of whether lawsuits might be brought against the government has arguably become less interesting than the question of how courts will decide such lawsuits. And the generic notion of judicial independence itself no longer sheds sufficient light on the range of actual and possible judicial responses. Using the purportedly expanded scope of review of informal policy directives as an example, we show that symbolism-motivated advocacy to improve the administrative litigation in China may come at the expense of protecting the non-symbolic functions of judicial review, and of guaranteeing what judges really care about, i.e. the coherence of law and consistency in the delivery of justice.

A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law

Horizontal effect of fundamental rights – Legal principles – Dichotomy between private and public law – Systemic or anti-systemic elements in legal orders – Conflict between contractual autonomy and fundamental rights – Coherence in law – Balancing – Cases of permissibility of bank charges in the Czech and German legal systems – General clauses on good morals and good faith in private law

Response to the Public Consultation on Building a European Data Economyy

With this submission, we would like to respond, in our personal capacity as researchers, to two issues raised by the European Commission’s public consultation on ‘Building a European Data Economy’, namely: the development of a possible future EU framework for data access (section 1), and the issue of portability in the context of non-personal data (section 2). Regarding both issues, our submission aims to convey two main messages: • A cautious, evidence-based approach should be taken in devising any possible future legislative or non-legislative measures for the European data economy; and • Since a number of legal fields and policy initiatives overlap in this context, there is a strong need to ensure consistency of policies and coherence of law on the European as well as national level.

Ten Theses on Coherence and Law

The aim of this chapter is to advance the following theses: 1. The concept of coherence in law may be best understood in terms of constraint satisfaction; 2. Coherence-based inference is an explanatory kind of inference; 3. There are three main operations whereby coherence may be built in the course of legal decision making: subtraction, addition, and re-interpretation; 4. Epistemic responsibility is a pivotal component in a theory of legal coherence; 5. Coherentist standards of legal justification vary with context; 6. Coherence-based legal reasoning is a variety of reasoning about ends; 7. There are three main reasons why coherence is a value worth pursuing in law: epistemic reasons, practical reasons, and constitutive reasons; 8. The main motivation of legal coherentism is to provide a non-skeptical alternative to formalism; 9. The coherence theory of legal justification is psychologically plausible and this provides an argument in favor of this theory; 10. Legal coherentism is an agent-centered theory of justification. In what follows, I shall discuss in some detail each of these theses.

Epistemological Considerations in Private Law: Exploring Taxonomical Structures in the Common Law, Civil Law and beyond

This paper aims to further the classification discourse by examining the importance and function of taxonomical structures in private law. The paper begins by considering the extent to which it is possible to develop, establish and maintain a classificatory scheme that constitutes a genuine reflection of the law and more generally, the value in searching for such coherence in law. The discourse developed within the paper is based on an assumption that there is a significant need for taxonomy, both within and beyond the boundaries of national law. This paper will introduce some of the issues which are of particular relevance at both the national level, through a consideration of taxonomy and classification in the development of the civil and the common legal traditions, and the transnational level, through an analysis of the attempts to develop legal taxonomy within the context of European private law (examining in particular, the Draft Common Frame of Reference).

Jedność nauki versus wielość nauk

Since Middle Ages, a precondition to set apart any discipline and its transformation from real knowledge-science, i.e. theology to current state of the art, has been fighting the conviction of the science unity particular value, shared by all opponents of isolating new disciplines, who derived their approach from Manichean structure of reality-science. Verifying this approach I evoke various, still parallel experience of unsuccessful defence of the international law unity from the fragmentation of law, and subsequently results of partition of law and international law and its impact on the law coherence (including international law) and the coherence of international turnover legal regulation – the long road from law to domestic and international law, from international law to both European and international law, and at present, to (single) law of the European Area.

Heterodox Logic and Law: Topics for a Report on Philosophy and Hermeneutics

This work deals with the philosophical approach for Juridic Sciences focusing on Heterodox Logics. It begins by considering how contradictory theories and incompatible questions in Juridical Hermeneutics can be objectively treated by Philosophy of Heterodox Logics. To speak about the insertion of new logics in juridical thought means to establish other criteria to map the intuitive concept of truth and coherence in Law, considering that what is most important are the pragmatic consequences of that truth. The central thesis of Heterodox Logic applied to Law is the intuition resides in uncertainty, ambiguousity, vagueness and inconsistency without trivialization, in the operation of contradictions and complementarities, as demonstrated by the theorems that validate them. This event can be really revolutionary for Law, in the sense that it signifies a change of paradigm in the present juridical theory. Besides, the practicability of complementariness between systems and subsystems may provide the opening of new field for the really scientific investigation of Law. But the successful use of Heterodox Logic in law infers a change in the intellectual attitude in the sense of comprehension based on intuitionism, since the concept of complementarity, fundamental in Heterodox Logic, presupposes the non-necessity of mutual exclusion so that incompatibility between systems does not mean that one must (but only may) exclude the other one. So, the new logics – more specifically the Heterodox Logic – rise in order to reveal, starting from their own fundaments, significant conquests not only for Law but for Science in general. The purpose of this paper is not to recapitulate the classical question of the Logic of Law, nor to review its history in reference to norms taken individually. What is meant is to start preliminary considerations about questions applicable to some problems referring to Law structure, that is, to juridical ordering.. The importance of Hermeneutics is inquestionable in the theoretical construction of Law, particularly for feeding the human and social nature of that knowledge. On the other hand, it is impossible to deny a certain “epistemological crisis” at present in Positive Law, in regard to the complex social question, for which the jurisdiction will have to be as far as possible, scientific, precise, and satisfactory.

Merging Antitrust and Regulation into State Aid? – Crisis Lessons in Competition Law Coherence

Merging Antitrust and Regulation into State Aid? – Crisis Lessons in Competition Law Coherence

Why Prosecute? Critics of Punishment for Mass Atrocity

International debate now rages over how new democratic regimes ought best to redress the wrongs of their predecessors, especially the massive human rights violations perpetrated by government officials.' This article offers nutshell summary of the major objections often raised to criminal prosecution, with view to sharpening the terms of debate over the strengths and weakness of that approach to the problem. The harm wrought by state sponsors of mass atrocity is so colossal that even skeptics of the criminal law's coherence and defensibility find themselves longing for their doubts to be allayed, at least for perpetrators such as these. In the face of such monstrous wickedness, retributive impulses emerge powerfully even in those most critical of our practices of punishment and their underlying assumptions. If ever there were an easy case (in the moral sense, at least) for criminal punishment, surely this is it. Or so one would suppose. Yet in the few instances where conviction has been obtained for large-scale, state-sponsored massacres, it has been secured only at the apparent price of troubling departures from settled law and principles. Hence, for instance, Judith Shklar's observation that the Nuremberg trial of major war criminals represented a genuine moral crisis . . . for persons of