Law

In legal decisions standpoints can be supported by formal and also by substantive interpretative arguments. Formal arguments consist of reasons the weight or force of which is essentially dependent on the authoritativeness that the reasons may also have: In this connection one may think of linguistic and systemic arguments. On the other hand, substantive arguments are not backed up by authority, but consist of a direct invocation of moral, political, economic, or other social considerations. Formal arguments can be analyzed as exclusionary reasons: The authoritative character excludes—in principle—substantial counterarguments. Formal arguments are sometimes used to conceal value judgements based on substantial arguments. This paper deals with reconstructing problems regarding this strategic use of formal arguments in legal decisions, with a focus on linguistic argumentation.

SUMMARY Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) guarantee the rights to dignity of the person, personal liberty and freedom of movement. These rights connote that no one shall be arbitrarily arrested; anyone arrested shall be brought before a court of competent jurisdiction within a reasonable time, otherwise such detention is unlawful; where a person is lawfully detained, it shall be under humane conditions. Despite these constitutional safeguards, people continue to be detained in detention centres beyond the permissible periods without an order of court and in inhumane conditions. Thus, unlawful detention is one of the challenges confronting the administration of the criminal justice sector in Nigeria. In 2015 the National Assembly, in a bid to address the challenges in the sector, particularly unlawful and inhumane detention, enacted the Administration of Criminal Justice Act (ACJA) which is generally perceived as revolution...

The hope has long been that the Native American Graves Protection and Repatriation Act (NAGPRA) would finally bring ancestors and their cultural items home to their communities to be reconnected and rest. However, 30 years later, museums and academics still fear losing control of research and access in their intellectual pursuits. Far from true, museums have benefited in working with tribes in telling stories around their cultural history, present and future. This article shares experiences over the authors’ careers and counters the alarmist calls to arms against compliance with NAGPRA.

Physician-assisted suicide laws in Oregon and Washington require the person to have current competency and a prognosis of terminal illness. In The Netherlands voluntariness and unbearable suffering are required for euthanasia. Many people are more concerned about the loss of autonomy and independence in years of severe dementia than about pain and suffering in their last months. To address this concern, people could write advance directives for physician-assisted death in dementia. Should such directives be implemented even though, at the time, the person is no longer competent and would not be either terminally ill or suffering unbearably? We argue that in many cases they should be.

Paul Celan's poem, `In die Ferne' tells us that the poem is not timeless, even if it lays claim to infinity. It exists finitely, like the breath. Thus, for Celan, poetry does not forget or deny one's finitude and death. Instead it is a mode of being towards death. Hence, Celan's poetry comes close to Martin Heidegger's freedom towards death, i.e. freedom to die one's own death. For Celan the task of the poet is to remind us of this fact, which is also the fundamental law of humanity. The article analyses what is the meaning and importance of this fundamental law, which is both the destiny and possibility for human beings.

As artificial intelligence (AI) systems become more sophisticated and play a larger role in society, arguments that they should have some form of legal personality gain credence. The arguments are typically framed in instrumental terms, with comparisons to juridical persons such as corporations. Implicit in those arguments, or explicit in their illustrations and examples, is the idea that as AI systems approach the point of indistinguishability from humans they should be entitled to a status comparable to natural persons. This article contends that although most legal systems could create a novel category of legal persons, such arguments are insufficient to show that they should.

John Skelton is a central literary figure and the leading poet during the first thirty years of Tudor rule. Nevertheless, he remains challenging and even contradictory for modern audiences.

This book aims to provide an authoritative guide to this complex poet and his works, setting him in his historical, religious, and social contexts. Beginning with an exploration of his life and career, it goes on to cover all the major aspects of his poetry, from the literary traditions in which he wrote and the form of his compositions to the manuscript contexts and later reception. Contributors: Tom Betteridge, Julia Boffey, John Burrow, David Carlson, Helen Cooper, Elisabeth Dutton, A.S.G. Edwards, Jane Griffiths, Nadine Kuipers, Carol Meale, John Scattergood, Sebastian Sobecki, Greg Waite

Court responses to rape and sexual assault have been repeatedly criticized in England and Wales (Brown et al., 2010). In particular, research has identified prevalent stereotypes about rape in both the criminal justice system and wider society, with these rape myths often being used as the predominant explanation for inadequate victim/survivor treatment (see Temkin and Krahé, 2008). The existing literature, though, tends to rely on interviews or is outdated by policy, so the present research uses court observations to explore what is actually happening in adult rape and sexual assault trials. The findings show that rape myths are still routinely used at trial, but that they are sometimes resisted using judicial directions or prosecution comments. In addition, the research highlights how rape myths are kept ‘relevant’ to trial through a focus on inconsistencies, a dichotomy of wholly truthful/untruthful witnesses, and conceptualisations of ‘rational’ behaviour as being the ‘normal’ w...

It is a common misconception that fides and bona fides are ethical principles with changeable content, shaped by the development of social and moral values. They belong instead, since time immemorial, to the tradition of the ius civile, and are deeply rooted in Roman social structure (and its needs) as interpreted by the priests and by the jurists. The standard of fides and bona fides is always objective: in the archaic period, the real status of the parties (fides as the 'credit' of the individual within the group); afterwards, an abstact stardard identified with the bonus vir. The two concepts developed therefore from early on an (outwardly) dualistic value: on the one side, the respect of the parties' agreement; on the other side, the respect of all the terms implied in the nature of the relationship.

This Court should not follow the Panel’s suggestion that Petersons’ challenge to personal jurisdiction be waived because no party made this argument to either this Court or the Court of Appeals. Under our system of government, the role of courts is not to advance arguments in
support of any of the adverse parties. United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020)(“In our adversarial system of adjudication, . . . in both civil and criminal cases, in the first instance and on appeal . . ., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id. at 140 S. Ct at 1579 (quotation marks omitted).) Cf. English v. Buss, supra., at **11-14 (unpublished) (Held one judge could review the order of another judge where lack of procedural due process was apparent.) See also RAP 2.5.
Had Division One panel’s waiver argument been made by the opposing party and its counsel the Petersons, through their counsel, would have been able to demonstrate this position should be rejected because the record reflects the Petersons never agreed to waive their right to adequate, non-fraudulent service of process, which includes being “duly cited to appear.” As to this right, see e.g., Hovey v. Elliott, 167 U.S. 409, 418 (1897); Garrison v. Cheeney, 1 Wash. Terr, 489, 503 (1875); Galpin v. Page, 85 U.S. (18 Wall.) 350, 368-69 (1873) (“It is a rule, old as the law, . . . , that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.”)

As to the law that waiver of constitutional rights must be knowing, intelligent, and voluntary, see State v. Herron, 183 Wn.2d 737, 743-45, 356 P.3d 709, 712-13 (2015). In fact, a court must “indulge every reasonable presumption against waiver of fundamental rights.” State v. Frawley, 181 Wn.2d 452, 461, 334 P.3d 1022 (2014). Under these constitutional principles there was no waiver of the Petersons’ right, asserted in their answer and other pleadings, not to be hailed into
a court that had no personal jurisdiction over them.

Another reason that failure to file a specific motion to dismiss for a lack of personal jurisdiction pursuant to KCLR 7(b)(5) was not required is because CR 12(h)(1) specifically provides “A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.” Here, these personal jurisdiction defenses were clearly asserted in the Petersons’ Answer, Affirmative Defenses, and Response to the Bank’s motion for summary judgment. And even if it was the intent of this superior court to require persons to file motions to dismiss under these circumstances, a superior court does not have the authority to
compel this result as local rules cannot alter the Washington Rules of Civil Procedure. See Parry v. Windermere Real Estate/East, 102 Wn. App. 920, 928-29 (2000)(Local Rule cannot waive right under CR 12(h) to assert personal jurisdiction defenses in answer); See also Harbor Enters. v. Gudjonsson, 116 Wn.2d 283, 293 (1991); State v. Chavez, 111 Wn.2d 548, 554 (1988)(Local court rules are subordinate to state rules of civil procedure).

In summary, and with such respect as is due the Panel’s suggestion that the Bank’s motion to amend should be granted, it is Petersons’ contention that judges must respect citizens constitutional rights and not waive them without a factual basis for doing so. Similarly, with
respect, the Panel had no constitutional authority—and violated the Petersons’ right to due process of law—when it invented an argument to help the Bank, which was inconsistent with the Civil Rues and cases interpreting them. Thus, this Court should also not waive the Petersons’ right to adequate service of process before granting a motion to amend because such a result would be futile under existing law, notwithstanding anything the Court of Appeals panel has said. Colvin v. Inslee, 195 Wn.2d 879, 899-901 (2020)
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Not since the United States Supreme Court’s constitutionally and morally bankrupt decision in Sanford v. Scott, 60 U.S. 393 (1857)2 has the integrity of America’s judicial system been more in doubt than it is now. See e.g., The Wall Street Journal, “131 Federal Judges Broke the Law
by Hearing Cases Where They Had a Financial Interest” (September 28, 2021); House Judiciary Committee, Nadler & Johnson Statement on Reports Federal Judges Broke the Law by Hearing Cases
Where They Had a Financial Interest (September 29, 2021)4. The problem an economically biased judiciary poses for our democratic republic is that it undercuts the basic premises upon which this
nation was founded, i.e., separation of powers, checks and balances, federalism, and due process of law. Unfortunately, for us, the People, these constitutional structures are not self enforcing, but must be enforced by those who have been economically incentivized to promote the interests of government workers—and their creditor allies—against this nation’s citizens.

In a post-pandemic world, museums open and close continuously;meanwhile, the lack of visitors results in deaccession or layoffs (at least this is the case with many private institutions). The author is highly knowledgeable and active in the field: prior to this book, she has already published I Global Trends in Museum Diplomacy Post-Guggenheim Developments i (Grincheva [1]), which dealt with the issues of offline museum diplomacy, and which I have been lucky enough to review previously. The book opens the discourse concerning digital museum diplomacy and illustrates that the online spaces of museums can be regarded as new platforms for cultural diplomacy. [Extracted from the article] Copyright of Journal of Arts Management, Law & Society is the property of Taylor & Francis Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for i...

Published as " When is a Haida Sphinx: Thinking about Law with Things " (2017) Northern Ireland Legal Quarterly 68:3 391-402.
The ‘law and . . .’ field of legal scholarship verges on consensus about the co-constitution between law and nearly everything else. Co-constitution raises questions about how to differentiate law from other things. The contemporary turn from words towards the material brings fresh perspective on these questions by suggesting that law’s differentiation is fabricated through materiality. This article considers whether and how material techniques that differentiate law might fabricate the difference of a thing not commonly understood by Western law as law. Its focus is an object created in Haida Gwaii in the late nineteenth century and now displayed in the British Museum. It shows that while techniques common to Western law differentiate this thing, competing materialities are also at work. Furthermore, jurisdictional choices are embedded in the fabrication of this thing’s difference. Understanding law as differentiated materially does not escape the social and jurisdictional forces that underpin how the matter of law comes to matter.

Nel rigido quadro sistematico implicato dal principio di legalità durante i secoli XIX e XX, molteplici sono stati gli itinerari teorici svolti intorno al problema del rapporto tra diritto e società e sul come concepire, tramite la giurisprudenza, dinamiche di manifestazione del diritto autonome dalla mediazione del potere politico. Il saggio si propone di considerare percezioni della questione su due terreni chiave. Il primo è quello rappresentato dal dibattito sull’interpretazione del diritto, che, soprattutto nel periodo a cavallo dei due secoli, esprime una varietà di orientamenti favorevoli rivalutazione del ruolo del giurista. Il secondo terreno è quello dei profili sistematici della giurisdizione che, in diverse realtà nazionali (qui vengono considerati i casi della Francia, della Germania e dell’Italia), tendono ad essere ripensati per favorire una valorizzazione del momento giurisprudenziale. Anche su questi terreni però le declinazioni del discorso sembrano restare condizionate dal persistere di un orizzonte precomprensivo di tipo monistico. Le pagine conclusive del saggio, nel seguire la parabola di tale impostazione, portano l’attenzione sui caratteri del diritto giurisprudenziale nella fase attuale; si intende con ciò valutare se, in uno scenario europeo ormai connotato da un quadro ordinamentale pluralistico, può essere rinvenuta nell’autonomia del diritto una nuova prospettiva di senso.

Unlike the bulk of penological scholarship dealing with managerialist reforms, this article calls for greater theoretical and research attention to the often pernicious impact of managerialism on criminal justice professionals. Much in an ideal-typical fashion, light is shed on: the reasons why contemporary penal bureaucracies endeavor systematically to strip criminal justice work of its inherently affective nature; the structural forces that ensure control over officials; the processes by which those forces come into effect; and the human consequences of submission to totalitarian bureaucratic milieus. It is suggested that the heavy preoccupation of present-day penality with the predictability and calculability of outcomes entails the atomization of professionals and the dehumanization of their work. This is achieved through a kaleidoscope of direct and indirect mechanisms that naturalize and/or legitimate acquiescence.

The Evolution of Israeli Citizenship: An Overview
Yoav Peled

Abstract

Israel's citizenship discourse has consisted of three different layers, superimposed on one another: An ethno-nationalist discourse of inclusion and exclusion, a republican discourse of community goals and civic virtue, and a liberal discourse of civil, political and social rights. The liberal discourse has served as the public face of Israeli citizenship and functioned to separate Israel's Jewish and Palestinians citizens from the non-citizen Palestinians in the occupied territories. The ethno-nationalist discourse has been invoked to discriminate between Jewish and Palestinian citizens within the sovereign State of Israel. Lastly, the republican discourse has been used to legitimate the different positions occupied by the major Jewish social groups: ashkenazim vs. mizrachim, males vs. females, secular vs. religiously orthodox.
Until the mid-1980s the republican discourse, based on a corporatist economy centered on the umbrella labor organization – the Histadrut – mediated between the contradictory dictates of the liberal and the ethno-nationalist discourses. Since then, the liberalization of the Israeli economy has weakened the republican discourse, causing the liberal and ethno-nationalist ones to confront each other directly. Since the failure of the Oslo peace process in 2000 these two discourses have each gained the upper hand in one policy area – the liberal one in economic policy and the ethno-national one in policy towards the Palestinians and the Arabs in general.
This division of labor is the reason why on the eve of its 60th anniversary as a state Israel is experiencing its worst crisis of governability ever. While Israel's economy is booming and the country's international standing remains high, due to the global "war on terror," public trust in state institutions and leaders is at an all-time low, so that the government cannot tend to the country's pressing business.