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Jurisprudence
Kinds of Jurisprudence Selected Abstracts"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty JurisprudenceJOURNAL OF SUPREME COURT HISTORY, Issue 1 2000Sidney L. Harring On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States. [source] Perspectives on Therapeutic Jurisprudence in Dependency Court in Cases Involving Battered MothersJUVENILE AND FAMILY COURT JOURNAL, Issue 1 2008Candice L. Maze ABSTRACT A qualitative study was conducted involving clients, victim advocates, and judges participating in one of Miami-Dade County's (Florida) "therapeutic" juvenile court based programs, the Dependency Court Intervention Program for Family Violence (DCIPFV). The primary objective of this study was to assess how battered mothers' perceptions of the dependency court judges' actions impacted the women's motivation to take appropriate actions to promote their own, and their child(ren)'s safety. [source] Tom Morawetz's "Robust Enterprise": Jurisprudence after WittgensteinPHILOSOPHICAL INVESTIGATIONS, Issue 2 2006Thomas D. Eisele I examine one theme within Tom Morawetz's complex jurisprudential work (stemming from Wittgenstein): the concept of a practice. After considering this theme in some detail, I then sketch a different jurisprudential approach that still proceeds within the inspiration of Wittgenstein's later philosophy. Here, I summarise Stanley Cavell's elaborate recounting of Wittgenstein's twin concepts, "criteria" and "grammar." In a third and final section, I employ this alternative method to provide a brief example of how a Wittgensteinian approach might be made towards explicating and understanding Holmes' classic claim regarding the need in jurisprudence to separate legal and moral concepts. [source] Consolations of the Law: Jurisprudence and the Constitution of Deliberative PoliticsRATIO JURIS, Issue 3 2001Peter Fitzpatrick Initially, deliberative politics offers a failure of self-identity in that the literature dealing with it divides between its determinate elevation in terms of reason, and such, and its dissipation in response to the diversity of interests pressing on it. Next, drawing on the resources of poststructural jurisprudence and by way of locating law at a defining limit of deliberative politics, a similar divide is found in law itself. Then, more productively, law is shown to be constituted with-in that divide and to take characteristic content from it. Finally, the analysis is returned to deliberative politics where the divide found in the literature can now be seen as offering this politics possibilities of effective constitution and distinctive content. [source] Intellectual Property Rights Jurisprudence in Tanzania: Turning an Eye to the Commercial Division of the High CourtTHE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 6 2006Paul Faustin Kihwelo This article seeks to address the practice and judicial development in Tanzania insofar as interpretation of matters relating to intellectual property (IP) are concerned. The article begins by examining the various forms of IP and proceeds to illucidate legal frameworks both globally, which includes matters relating to the World Intellectual Property Organization as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provisions, and the Tanzania legal framework. In addition, the article examines the genesis and framework of the commercial court in Tanzania and proceeds to make an in-depth analysis of TRIPS enforcement provisions with emphasis on the practice of the commercial court. The author proceeds to examine a number of selected cases decided by the commercial court since its inception to date. [source] Kemal A. Faruki's Reconstruction of Islam(ic Law): A Modernist Position in Islam(ic Jurisprudence)THE MUSLIM WORLD, Issue 4 2008Mark Gould First page of article [source] Courts, the new constitutionalism and immigrant rights: The case of the French Conseil ConstitutionnelEUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 6 2004Christian Joppke Immigrant rights are located within a broader ,new constitutionalism' (especially in postwar Europe), in which courts have abandoned their traditional passiveness toward the political process and taken on the role of de facto legislator. Analyzing the immigration jurisprudence of the French Conseil Constitutionnel, we argue that courts are torn between two opposite imperatives: to protect an especially vulnerable category of people from the enormous police powers of the modern administrative state; and to respect an elementary exigency of sovereign stateness , that is, the capacity to draw a distinction between ,citizens' and ,aliens' as differently situated persons without a right of entry and permanence. [source] Selecting explanations from causal chains: Do statistical principles explain preferences for voluntary causes?EUROPEAN JOURNAL OF SOCIAL PSYCHOLOGY, Issue 3 2010Denis J. Hilton We investigate whether people prefer voluntary causes to physical causes in unfolding causal chains and whether statistical (covariation, sufficiency) principles can predict how people select explanations. Experiment 1 shows that while people tend to prefer a proximal (more recent) cause in chains of unfolding physical events, causality is traced through the proximal cause to an underlying distal (less recent) cause when that cause is a human action. Experiment 2 shows that causal preference is more strongly correlated with judgements of sufficiency and conditionalised sufficiency than with covariation or conditionalised covariation. In addition, sufficiency judgements are partial mediators of the effect of type of distal cause (voluntary or physical) on causal preference. The preference for voluntary causes to physical causes corroborates findings from social psychology, cognitive neuroscience and jurisprudence that emphasise the primacy of intentions in causal attribution processes. Copyright © 2009 John Wiley & Sons, Ltd. [source] The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias KummEUROPEAN LAW JOURNAL, Issue 2 2006Theodor Schilling This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS,its principles,may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law. [source] The General Provisions of the Charter of Fundamental Rights of the European UnionEUROPEAN LAW JOURNAL, Issue 4 2002R. Alonso García The Charter of Fundamental Rights of the European Union provides the Union with a ,more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called ,aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional,or Supreme,Courts of the Member States of the Union and the European Court of Human Rights). [source] Beyond Constitutionalism: The Search for a European Political ImaginationEUROPEAN LAW JOURNAL, Issue 1 2001Ian Ward Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ,new' Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ,universal' jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ,new' Europe; just as, indeed, it was for the ,old' Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ,beyond' sovereignty, or even beyond democracy, but beyond constitutionalism. [source] Ideologies of Motherhood in European Community Sex Equality LawEUROPEAN LAW JOURNAL, Issue 1 2000Clare McGlynn This article argues that, in a series of cases from Hofmann in the mid-1980s to Hill and Stapleton in 1998, the Court of Justice has reproduced, and thereby legitimated, a traditional vision of motherhood and the role of women in the family, and in society generally. This vision, characterised as the ,dominant ideology of motherhood', limits the potential of the Community's sex equality legislation to bring about real improvements in the lives of women. Accordingly, far from alleviating discrimination against women, the Court's jurisprudence is reinforcing traditional assumptions which inhibit women's progress. It is argued that the Court should reject the dominant ideology of motherhood and utilise its interpretative space to pursue a more progressive and liberating rendering of women and men's relationships and obligations to each other and their children. [source] BREAKING DOWN BUSINESS VALUATION: THE USE OF COURT-APPOINTED BUSINESS APPRAISERS IN DIVORCE ACTIONS*FAMILY COURT REVIEW, Issue 4 2006Donna TumminioArticle first published online: 11 SEP 200 This Note advocates for greater reliance on court-appointed business appraisers in divorce proceedings. After exploring the history of court-appointed experts in American jurisprudence and addressing the specific problems that arise when valuing a business, this Note demonstrates how neutral business appraisers can assist courts in assessing a highly technical matter while simultaneously providing both courts and parties with an accurate, reliable source of information. The Note further provides suggestions for when the appointment of a neutral appraiser may be beneficial. The second section of this Note addresses technical matters that the court must deal with in selecting a reliable expert, including where the court derives its power to appoint a neutral expert, what standards the court should use in appointing the expert, and who should pay the cost of the expert's appointment. [source] Stabilizing flows in the legal field: illusions of permanence, intellectual property rights and the transnationalization of lawGLOBAL NETWORKS, Issue 1 2003Paul Street In this article I examine some of the problems that ,modern' legal theory poses for a consideration of the extended reach of social actors and institutions in time and space. While jurisprudence has begun to engage with the concept of globalization, it has done so in a relatively limited manner. Thus legal theory's encounters with highly visible transnational practices have, for the most part, resulted not in challenging the prevailing formal legal paradigm, but in a renewed if slightly modified search for a general jurisprudence that ultimately takes little account of the manner in which the work of law is carried out transnationally. In the first part of this article I examine how legal theory's concern to maintain its own integrity places limitations on its ability to examine the permeability of social boundaries. In the latter part I draw on critical human geography, post,structuralism and actor,network theory (ANT), to examine the manner in which transnational actors have been able to mobilize law, and in particular intellectual property rights (IPRs), as a necessary strategy for both maintaining the meanings of bio,technologies through time and space, and enrolling farmers into particular social networks. [source] A poet in politics: Thomas Sackville, Lord Buckhurst and first earl of Dorset (1536,1608)*HISTORICAL RESEARCH, Issue 204 2006Rivkah Zim Three elements in the experience of Thomas Sackville , eloquence, money and the law , integrate the achievements of the young poet and the mentality of the mature councillor, and enhance our understanding of him. His poetry had topical, political significance and taught him how to argue persuasively. His wealth gave him the confidence to be outspoken. His legal training, and the emphasis on equity and conscience, which began to affect Tudor jurisprudence (through such works as St. German's), account for many of the assumptions he articulated in public life. Two appended letters provide extended illustrations of these arguments. [source] 1. NARRATIVE EXPLANATION AND ITS MALCONTENTSHISTORY AND THEORY, Issue 1 2008DAVID CARR ABSTRACT In this paper I look at narrative as a mode of explanation and at various ways in which the explanatory value of narrative has been criticized. I begin with the roots of narrative explanation in everyday action, experience, and discourse, illustrating it with the help of a simple example. I try to show how narrative explanation is transformed and complicated by circumstances that take us beyond the everyday into such realms as jurisprudence, journalism, and history. I give an account of why narrative explanation normally satisfies us, and how or in what sense it actually explains. Then I consider how narrative is challenged and rejected as a mode of explanation in many scientific and other contexts and why attempts are made to replace it with something else. I try to evaluate the nature and sources of these challenges, and I describe this controversy over narrative against the historical background of its emergence. My paper ends with a pragmatic defense of narrative explanation against these challenges. [source] Infant mental health, child maltreatment, and the law: A jurisprudent therapy analysis,INFANT MENTAL HEALTH JOURNAL, Issue 1 2008James J. Clark Scholarly and clinical discussions of the legal issues facing infant mental health professionals typically focus on the seemingly intractable differences in philosophies, goals, and approaches inherent in the law and the mental health professions. We argue that forensically informed approaches to practice with very young children can potentially enhance many mental health and child welfare outcomes. This article describes the relatively new conceptual frameworks known as "therapeutic jurisprudence" and "jurisprudent therapy." Using these conceptual frameworks, we analyze representative problems that are typical in infant mental health practice with maltreated children through case examples drawn from their evaluations of children and families in the child protection and legal systems. Demonstrations of how such dilemmas can be approached with enhanced analytic decision-making and practice approaches are presented. We argue that applying such jurisprudent therapy approaches opens up fresh perspectives for evidence-based practices that facilitate creative, rigorous, and intellectually stimulating clinical work. [source] The International Covenant on Economic, Social and Cultural Rights as a tool for combating discrimination against women: general observations and a case study on Algeria*INTERNATIONAL SOCIAL SCIENCE JOURNAL, Issue 184 2005Karima Bennoune The International Covenant on Economic, Social and Cultural Rights (ICESCR) is vital to protecting the human rights of women. This is reflected in the substantive rights which the treaty guarantees and its procedural emphasis on non-discrimination. The ICESCR now has 151 State Parties, as compared with 180 states that have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). While the latter is a lightning rod for opposition to the advancement of women's rights, the former is not. It may, therefore, be a particularly useful tool for combating discrimination against women, especially in the Muslim world where resistance to CEDAW in conservative quarters is strong. Still, some argue that the Committee on Economic, Social and Cultural Rights, which monitors implementation of the ICESCR, needs to further elaborate its jurisprudence on women's issues. Against such a complex backdrop, this study will explore the utility of the ICESCR in combating discrimination against women, looking in particular at the example of Algeria, which became a State Party in 1989. [source] Impact of cost containment measures on medical liabilityJOURNAL OF EVALUATION IN CLINICAL PRACTICE, Issue 6 2006S. Callens PhD Abstract Rationale, Owing to the growing health care expenditure and the need to improve efficiency, public authorities have since the 1980s changed their policy with respect to health care. Financial pressures encouraged them to investigate methods to control health care costs. One recent method is the enactment of cost containment measures based on clinical practice guidelines (CPGs) that provide financial or administrative sanctions. Aims and objectives, This article describes the legal value of CPGs, the evolution towards cost containment measures based on CPGs, and finally the legal value of these new cost containment measures. It questions whether these measures may have an impact on the medical liability rules and it wants to open the debate on the legal value of these measures based vis-à-vis the professional autonomy of the physician and patients' rights on quality care. Methods, The research for this article is based on a comparative analysis of the legal literature and jurisprudence of a number of legal systems. Results and Conclusions, The article concludes that, as a result of the rising costs, it becomes increasingly difficult for a physician to balance his duty to take care on the one hand and his duty to control costs on the other. Maintaining a high standard of care towards patients becomes difficult. Consequently, one wonders whether the law should then allow the standard of care to be adjusted according to the available means. Until now, courts in a fault based system have not been willing to accept such an adjustment of the standard of care, but it might well be possible that this attitude will change in case of no-fault compensation systems. [source] Citizenship and the Biopolitics of Post-nationalist IrelandJOURNAL OF LAW AND SOCIETY, Issue 3 2005John A. Harrington In June 2004 voters in the Republic of Ireland endorsed a constitutional amendment to deprive children born on the island of Ireland of their previously automatic right to Irish citizenship. This change came amid increasing immigration and so-called ,baby tourism', whereby non-national mothers were alleged to be coming to Ireland to give birth for the sole purpose of bestowing Irish citizenship on their children. This article sets the referendum in its historical and contemporary context. Along with recent jurisprudence of the Irish Supreme Court, the amendment betokens a distinctive biopolitics orchestrated according to neo-liberal themes consonant with Ireland's membership of the European Union and its foreign direct investment strategy. As such, the amendment confirms the shift in Irish constitutional history from autarkic nationalism to cosmopolitan post-nationalism embodied in the Belfast Agreement of 1998. [source] Legal Feminism and Foucault , A Critique of the Expulsion of LawJOURNAL OF LAW AND SOCIETY, Issue 4 2001Vanessa E. Munro Contemporary theorists have become increasingly receptive to the selective incorporation of Foucaultian theory within feminist frameworks. However, the reception of Foucault within feminist legal critique has been less enthusiastic. The most celebrated theorist to argue for the incorporation of Foucaultian insight within the feminist analysis of law is Carol Smart. While conceding the significant contribution of her work, this article will argue that her interpretation of the Foucaultian thesis on law is considerably more problematic. Illustrating the extent to which she adopts an unnecessarily pessimistic prognosis for the development of Foucault within legal analysis and reform, this article will examine an emerging counter-interpretation of Foucault that presents the possibility for a more promising application, seeking to provide a defence both of the utility of Foucault for feminist jurisprudence, and of the utility of legal reform strategies being exercised for feminist purposes. [source] The Court's Role in Promoting Comprehensive Justice for Pregnant Drug and Alcohol UsersJUVENILE AND FAMILY COURT JOURNAL, Issue 3 2008Tourine Johnstone ABSTRACT Drug use during pregnancy is an important social and medical issue. Legislatures and courts have offered a variety of responses, ranging from imprisonment to comprehensive service programs that are rehabilitative in nature. This article discusses the prevalence and effects of prenatal drug use, followed by a presentation of the scope of legal responses and treatment options. Some courts do not provide outreach services for drug-offending mothers, while others may offer a limited range of services. In contrast, a comprehensive justice approach would provide a wide range of health, employment, and social programs for the offender. This approach is based on philosophies of restorative justice, therapeutic jurisprudence, and procedural justice. Such a theory-based comprehensive justice program ultimately benefits mothers, children, and the community. Considerations are offered for judges who seek to implement a comprehensive justice approach to address this important problem. [source] Faith-Based Programs for Reentry Courts: A Summary of Issues and RecommendationsJUVENILE AND FAMILY COURT JOURNAL, Issue 4 2004DENISE C. HERZ ABSTRACT In 2002, the Bush Administration directed the Department of Justice to include faith-based organizations in its distribution of funds earmarked for programs targeting the prevention and treatment of juvenile delinquency and substance abuse. Among the initiatives most likely to be affected by this new policy are reentry court programs that endeavor to reintegrate juvenile delinquents into their communities by placing them within local neighborhood-based programs. However, reentry court personnel and leaders of faith-based organizations are likely to encounter numerous challenges as they try to establish appropriate programming. In this article, we discuss the current understanding of First Amendment jurisprudence governing the federal funding of faith-based organizations and summarize key issues identified by a National Council of Juvenile and Family Court Judges' workgroup on faith-based programming that are necessary for including faith-based organizations within a reentry court's continuum of care. We also discuss several concerns that reentry court personnel and faith-based organizations should consider as they seek to maximize the impact of their programs. [source] Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court PracticeJUVENILE AND FAMILY COURT JOURNAL, Issue 4 2003ANDREA C. FARNEY ABSTRACT Freedom from domestic violence is a central right that will be realized through a transformation of culture. Law, embedded within the evolving cultural transformation, plays a necessary, though not sufficient, role in social change. This article reviews the development of family and domestic violence law. It compares and contrasts the core precepts of family and domestic violence jurisprudence with resulting practice and policy ramifications arising from the inherent substantive tensions. Finally, critical civil legal system actors, courts, and attorneys are challenged to apply and practice domestic violence law in the struggle to afford justice for all. [source] Learning to Dispute: Repeat Participation, Expertise, and Reputation at the World Trade OrganizationLAW & SOCIAL INQUIRY, Issue 3 2010Joseph A. Conti This mixed-method analysis examines the effects of repeat participation on disputing at the World Trade Organization (WTO). Differences between disputants in terms of their experience with WTO disputing processes affect the likelihood of a dispute transitioning to a panel review in distinct ways, depending upon the configuration of the parties. More experienced complainants tend to achieve settlements, while more experienced respondents tend to refuse conciliation. Strategies of experienced respondents are derived from the expertise generated from repeated direct participation and the normalcy of disputing for repeat players as well as the benefits accruing from a reputation for being unlikely to settle. Repeat players also seek to avoid disputes expected to produce unfavorable jurisprudence but do not actively try to create new case law through the selection of disputes. This research demonstrates a dynamic learning process in how parties use international legal forums and thus extends sociolegal scholarship beyond the nation-state. [source] Maybe He's Depressed: Mental Illness as a Mitigating Factor for Drug Offender AccountabilityLAW & SOCIAL INQUIRY, Issue 3 2009Leslie Paik Given the often perplexing relationship between mental illness and substance abuse among offenders, this article looks at how a juvenile drug court staff's presumptions of a youth's mental illness affect its decision-making process. Based on thirteen months of ethnographic fieldwork at a Southern California juvenile drug court, this article uses Manzo and Travers's "law in action" approach to analyze how the staff readjusts its application of normal remedies (a concept developed by Robert Emerson) designed to respond to a youth's noncompliance when it suspects mental illness may be influencing the youth's actions. In doing so, it highlights how court staff's considerations of youth mental disorders arise out of its everyday work practices. Furthermore, the article discusses how staff negotiations around a youth's mental illness create tensions for the juvenile drug court's accountability-based model of therapeutic jurisprudence, because assessments of mental illness tend to mitigate responsibility for a youth's behavior. [source] Married Women Bankrupts in the Age of CovertureLAW & SOCIAL INQUIRY, Issue 2 2009Karen Pearlston Many married women with separate property held their property as stock-in-trade and traded independently from their husbands. However, if the business failed, a married woman trader's ability to take advantage of bankruptcy process depended on the exception to coverture according to which she held her separate property. This article is the first to examine reported bankruptcy cases involving married women in their doctrinal context and in relation to other exceptions to coverture. It analyzes the issues arising in the eighteenth century and argues that they should be understood in relation to the larger picture of married women's law, especially the law of private separation. The article also considers the oblique relationship between private separation jurisprudence and married women's bankruptcy in the nineteenth century, a relationship that was bridged by a line of cases that, on the surface, seem to be unrelated. [source] Religion, Historical Contingencies, and Institutional Conditions of Criminal Punishment: The German Case and BeyondLAW & SOCIAL INQUIRY, Issue 2 2004Joachim J. Savelsberg Religion and historical contingencies help explain cross-national and historic variation of criminal law and punishment. Case studies from German history suggest: First, the Calvinist affiliation of early Prussian monarchs advanced the centralization of power, rationalization of government bureaucracy, and elements of the welfare state, factors that are likely to affect punishment. Second, the dominant position of Lutheranism in the German population advanced the institutionalization of a separation of forgiveness in the private sphere versus punishment of "outer behavior" by the state. Third, these principles became secularized in philosophy, jurisprudence, and nineteenth-century criminal codes. Fourth, partly due to historical contingencies, these codes remained in effect into post,World War II Germany. Fifth, the experience of the Nazi regime motivated major changes in criminal law, legal thought, public opinion, and religious ideas about punishment in the Federal Republic of Germany. Religion thus directly and indirectly affects criminal law and punishment, in interaction with historical contingencies, institutional conditions of the state, and other structural factors. [source] The nature of law as an interpretive practice and its associated modes of inquiryLEGAL STUDIES, Issue 4 2009Nathan Gibbs The paper provides a critical survey of certain methodological debates in the field of legal philosophy in order to assess their implications for legal research in general. Underpinning this survey is a concern to establish the independence and integrity of both legal practice and legal research in the light of the risks posed by preponderant forms of instrumental rationality. Thus, Brian Leiter's recent call for a ,naturalised' jurisprudence is criticised for the instrumentalist basis upon which he claims to privilege forms of legal research apparently ,continuous with' the natural and empirical social sciences. As against Leiter, it is argued that there are in fact a range of distinct but interrelated modes of legal research. In this respect, the work of HLA Hart is interpreted as an example of a distinctively theoretical mode of inquiry into law. In addition, an account of the nature of a distinctively practical mode of legal inquiry is developed from a critique of Ronald Dworkin's excessively ,theoretical' reading of the interpretive character of legal practice. A constitutive practical feature of both modes of inquiry is their capacity to take up a certain distance from any exclusive concern with instrumental or pragmatic action. [source] Criminal justice and penal populism in IrelandLEGAL STUDIES, Issue 4 2008Dr Liz Campbell In constructing criminal policy the Irish legislature seems to be driven predominantly by a pragmatic and populist approach, in contrast to the rights-oriented jurisprudence of the Supreme Court. This paper describes the conflict between the courts and the legislature in relation to criminal justice matters in Ireland, particularly in the context of bail, the exclusionary rule and sentencing, and analyses the reasons for this divergence, drawing on the concept of penal populism. Although the Irish courts serve as a valuable bulwark against punitive populist policies, this paper considers if this failure to adhere to the desires of the legislature and to public opinion is anti-democratic. Furthermore, in assessing the apparent rift between the two arms of the Irish State, this paper highlights areas of criminal justice in which this conceptualisation of the legislature as punitive and the courts as rights-enforcing is unduly simplistic and possibly inaccurate. [source] | |||||||||||||||||||||||||||||||