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Atria, Lemaître Fernando. "On law and legal reasoning /." Oxford [u.a] : Hart, 2001. http://www.loc.gov/catdir/toc/fy043/2003269428.html.
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Atria, Fernando. "On law and legal reasoning." Oxford ; Portland : Or. : Hart Publ, 2001. http://catalogue.bnf.fr/ark:/12148/cb38862958c.
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Berger, Daniel Robert Howard James. "Improving legal reasoning using Bayesian probability methods." Thesis, Queen Mary, University of London, 2015. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8914.
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A thesis which explores the possibility of introducing Bayesian probability methods into the criminal justice system, and in doing so, exposing and eradicating some common fallacies. This exposure aims to reduce miscarriages of justice by illustrating that some evidence routinely relied upon by the prosecution, may not have as high a probative value towards its ultimate hypothesis of ‘guilt’ as has been traditionally thought and accepted.
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Braman, Eileen Carol. "Motivated reasoning in legal decision-making." Connect to this title online, 2004. http://rave.ohiolink.edu/etdc/view?acc%5Fnum=osu1091730982.
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Thesis (Ph. D.)--Ohio State University, 2004.Title from first page of PDF file. Document formatted into pages; contains xvi, 213 p. Includes bibliographical references (p. 203-213). Available online via OhioLINK's ETD Center
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Coyle, Sean. "On the foundations of legal reasoning in international law." Thesis, University of Glasgow, 1998. http://theses.gla.ac.uk/5124/.
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Issues pertaining to the "foundations" of legal reasoning in international law break down into several discrete questions: what do statements about law mean; how do they get their meaning: to what do legal terms refer; in what does knowledge of law consist; how do we reason with legal concepts; what constitutes a criterion for argumentative success; how do bodies of legal concepts combine to form systems; is the conceptual organisation of different types of legal system, such as municipal law and international law, necessarily (or even factually) the same at some fundamental level?... This thesis is concerned with some measure with all of these questions, but the focus throughout is on those of the meaning of what we say about law, of legal knowledge, and of topological issues regarding legal systems (that is, how various types of legal system stand, conceptually, to one another). The thesis falls into two parts. The first, which is critical in nature, looks at some of the ways in which modern positivism has attempted to supply answers to these questions. It shall be argued that underlying those attempts is a particular view about the foundations of legal reasoning which has remained fairly constant in modern legal theory, not only among the positivists but also commonly among their sceptic rivals. Several difficulties with this view are raised and explored, all of which have contributed to the notion that international law is, when viewed through the spectacles of a municipal lawyer, at best a primitive system of law. The heart of Part I is a discussion of the character of legal knowledge. This takes place in the context of an account of the "Institutional Theory of Law" (ITL), as propounded by Neil MacCormick and Ota Weinberger. The argument that emerges is one broadly in favour of ITL, though critical of the methodological and philosophical assumptions on the basis of which the main edifice of the theory rests. It is submitted that such assumptions are the result of misplaced views about semantics and the nature of reference. Part I ends with the suggestion of an alternative, and hopefully more stable, strategy for generating the account of legal knowledge for which ITL strove. Part II comprises a positive thesis about the foundations of legal reasoning in international law, developed on the back of the strategy in Part I.
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Scobbie, Iain Girvan Mann. "Legal reasoning and the judicial function in the international court." Thesis, University of Cambridge, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.335827.
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Susskind, Richard Eric. "Expert systems in law : a jurisprudential enquiry." Thesis, University of Oxford, 1986. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.328926.
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Chan, Adrian Baihui. "Logic with a literary twist : essays in common law reasoning." Thesis, King's College London (University of London), 2016. http://kclpure.kcl.ac.uk/portal/en/theses/logic-with-a-literary-twist(82ecb4c5-b015-40b8-abdd-7b235283ebe5).html.
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What makes a good common law argument? Ronald Dworkin’s answer commands much respect within legal practice. To him, the correctness of a legal conclusion rests upon its capacity to fit within a narrative of normative progress that judges deliberately impose for the sake of (i) rendering overt the shared membership of discretely decided cases within a single determinate category (ii) depictive of moral attractiveness at its best. Yet, the inherent plausibility of Dworkin’s presentation of judicial reasoning has ironically resulted in the erosion of respect for the common law. If judicial narratives are imposed for aesthetic considerations, then legal conclusions must – per Kant – be mere idiosyncratic judicial desires that have the added quality of being objectively intelligible to other individuals who could nonetheless – owing to the absence of any criteria of norm correctness – justifiably disagree. If accurate, this characterization of legal decision-making would be anemic with modernity’s conviction that law is an entity inherently distinguishable from power because of the rationality – and therefore non-dogmatic nature – of its dictates. This thesis demonstrates – contra Dworkin – that judicial narratives go hand-in-hand with rationality. Judicial reasoning is thus of great importance to the aspirational goal of governance through law. As will be seen, only a constructed narrative renders possible the objective demonstrability (i) of the membership of discrete judicial decisions within the classificatory ambit of a specific norm and (ii) the legitimacy of that specific norm’s selection – from a set of countless other possibilities - via its evidential capacity to order those same discrete decisions tentatively asserted to be under its ambit into a coherent whole. Thus, because (i) the narrative is the methodological process by which a norm comes into agreement with its observed applications and (ii) truth is exactly this just-mentioned correspondence between intellect and reality, narrative construction is – quite properly – logic.
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Pethick, Stephen. "An investigation of coherence and coherence theory in relation to law and legal reasoning." Thesis, University of Oxford, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.275750.
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Ramic, Sukri Husayn. "Linguistic principles in Usul al-fiqh and their effect on legal reasoning in Islamic law." Thesis, University of Wales Trinity Saint David, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.504414.
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This present study deals with the linguistic principles that are used in the process of legal reasoning in Islamic law. These linguistic principles represent an important branch of the science of usu1 al-fiqh on its part represents the theoretical basis for the Shari ah and indisputable foundations upon which the whole structure of Islamic law is built. It is a unique study in the sense that no similar work, as far as we know, is available and its comparative and analytical approach has not been presented before. This study is divided into four parts. The first part deals with the linguistic principles that are related to the methods of textual indication on legal rulings. In this part these principles have been analysed according to both the Hanafi and the Shäfi'i approach. In the second part this study deals with linguistic principles which are related to clarity and ambiguity of words. It is a comparative study of the Hanafi and the Shdfi'i approach to this issue. The third part highlights the generality and specific qualities of words, and the fourth part analyses the possibility of interpretation of authoritative texts not according to their obvious meanings (ta'wi7). In general this is a comparative study of the methodology of interpretation of authoritative texts in Islamic law presented through the study of the linguistic principles in usül al-fiqh and their effect on legal reasoning in Islamic law.
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Shaleh, Ahmad Syukri. "Ibn Taymiyya's concept of istiḥsān : an understanding of legal reasoning in Islamic jurisprudence." Thesis, McGill University, 1995. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=23241.
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This thesis studies the theory of istihsan, an aspect of Islamic legal reasoning, as a method for ascertaining the legal norm in cases where qiyas dictates an overly strict ruling. The study primarily focuses on the concept presented by Ibn Taymiyya (d. 728/1328), a prominent Muslim theologian, philosopher, sufi and outstanding jurist. Placed in the context of later development, Ibn Taymiyya's theory proposes both a criticism and reformulation of the Hanafi school's perception of istihsan. Having observed previous formulations, Ibn Taymiyya sees this theory as being understood as an arbitrary contradiction to qiyas. Although attempts to redefine the theory, through rigorous definition and well-calculated application were conducted by later Hanafi jurists, criticism from other schoools continued unabated. To this effect, Ibn Taymiyya's contribution emerges as an alternative solution. In order to fully understand istihsan, Ibn Taymiyya contends that one must determine particularization of the cause (takhsid s al-'illa). By doing this, istihsan and qiyas can be easily distinguished. He, thus, perceives istihsan as takhsid s al-'illa. Unlike the Hanafis, Ibn Taymiyya does not juxtapose istihsan against qiyas sahid h. He argues that if there is a contradiction, it must be proved by a decisive descrepancy (farq mu'aththir) provided by the law giver. Furthermore, when qiyas produces an unsatisfactory legal norm, takhsid s al-'illa represents a viable alternative. Above all, Ibn Taymiyya contends that istihsan must be supported by the revealed texts, consensus or necessity.
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Conway, Gerard Martin. "Conflict of norms in European Union law and the legal reasoning of the European Court of Justice." Thesis, Brunel University, 2010. http://bura.brunel.ac.uk/handle/2438/5235.
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This thesis examines the topic of conflict of norms in European Union (EU) law and the legal reasoning of the European Court of Justice (ECJ), arguing that the framework of conflict of norms provides conceptual insight into justification and the role of value choices in legal reasoning. After examining the theory of conflict of norms, which seems to have been relatively under-studied generally and especially in EU law, it examines three particular aspects of norm conflict resolution in the legal reasoning of the ECJ and EU law: conflict of interpretative norms, especially the opposition between conserving and innovative interpretation; conflicts of human rights norms, looking in particular at the idea of a hierarchy of rights and of specificationism in the articulation of rights; and conflicts of competence norms. It concludes that the scope exists for a fuller justification of the choice of norms in the legal reasoning of the ECJ and generally in EU law and offers a perspective on how the values articulated by the EU suggest particular approaches to norm conflict resolution by the ECJ in its decision-making in these fields, in particular, a greater resort to lex specialis and originalist or historical interpretation, in contrast to its current method.
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Lusa, Bordin Fernando. "The analogy between states and international organizations : legal reasoning and the development of the law of international organizations." Thesis, University of Cambridge, 2014. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.708385.
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Shmilovits, Liron. "Deus ex machina : legal fictions in private law." Thesis, University of Cambridge, 2019. https://www.repository.cam.ac.uk/handle/1810/286225.
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This PhD dissertation is about legal fictions in private law. A legal fiction, broadly, is a false assumption knowingly relied upon by the courts. The main aim of the dissertation is to formulate a test for which fictions should be accepted and which rejected. Subsidiary aims include a better understanding of the fiction as a device and of certain individual fictions, past and present. This research is undertaken, primarily, to establish a rigorous system for the treatment of fictions in English law - which is lacking. Secondarily, it is intended to settle some intractable disputes, which have plagued the scholarship. These theoretical debates have hindered progress on the practical matters which affect litigants in the real world. The dissertation is divided into four chapters. The first chapter is a historical study of common-law fictions. The conclusions drawn thereform are the foundation of the acceptance test for fictions. The second chapter deals with the theoretical problems surrounding the fiction. Chiefly, it seeks precisely to define 'legal fiction', a recurrent problem in the literature. A solution, in the form of a two-pronged definition, is proposed, adding an important element to the acceptance test. The third chapter analyses modern-day fictions and recommends retention or abolition for each fiction. In the fourth chapter, the findings hitherto are synthesised into a general acceptance test for fictions. This test, which is the thesis of this work, is presented as a flowchart. It is the author's hope that this project will raise awareness as to the merits and demerits of legal fictions, de-mystify the debate and bring about reform.
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Kowalski, Andrzej. "Beyond rule-based legal expert systems : using frames and case-based reasoning to analyze the tort of malicious prosecution." Thesis, University of British Columbia, 1990. http://hdl.handle.net/2429/42045.
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Most legal expert systems to date have been purely rule-based. Case-based
reasoning is a methodology for building legal expert systems whereby profiles of
cases contained in a database, rather than specific legal rules, direct the outcomes of
the system. Frame-based knowledge representation in legal expert systems involves
the use of frames to represent legal knowledge. Case-based reasoning and frame-based
knowledge representation offer significant advantages over purely rule-based
legal expert systems in case-based law. These advantages are realizable by using
the deep structure approach to knowledge representation. This involves searching
beneath law at the doctrinal level for underlying fact patterns and structures which
explain decisions in cases. This is demonstrated by the Malicious Prosecution
Consultant, a legal expert system which operates in the domain of the tort of
malicious prosecution. The Malicious Prosecution Consultant confirms the results
of earlier research at The University of British Columbia, Faculty of Law that it is
possible to build legal expert systems in unstructured areas of case-based law with
relatively cheap commercially available expert system shells by using the deep
structure approach to knowledge representation.Law, Peter A. Allard School of
Graduate
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Barradas, de Freitas Raquel. "Explaining meaning : towards a minimalist account of legal interpretation." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:6660c431-e278-4a42-9e3d-ca43893fcf31.
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To interpret is to seek understanding. This formulation hides as much as it reveals and I propose to unpack it. I argue that interpreting is only a part of what legal theorists and practitioners do. In Part I, I attempt an ‘in vitro’ analysis and present the bare concept of interpretation: interpretation is an activity that needs an object; interpreting is reasoning about meaning when there is a possibility of mistake about that meaning. Part II focuses on two domains of interpretation: musical performance and adjudication. I rely on Joseph Raz’s account of interpretation as explanation or display and identify the former domain as a paradigm of display and the latter as a paradigm of explanation. Both are examples of interpretation for others and involve a claim to theoretical authority on the part of interpreters. But, unlike musicians- who interpret only works of music- judges interpret a great variety of objects. Musical interpretation is identified by its object, whereas legal interpretation is not. Legal interpretation is explanation of legal meaning. I then discuss the tenets of the minimalist view of legal interpretation: (i) legal rules are not interpretable and legal texts are not primary objects of legal interpretation; (ii) there is a difference between interpretative authority (a form of theoretical authority) and legal authority (a form of practical authority) and interpretative conclusions can be theoretically authoritative without being exclusionary reasons for action; (iii) Interpreting and adjudicating are different activities. Interpretation explains, adjudication resolves. Legal interpreters do not produce legal rules: they are required to be guided by them.
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Mendonça, Rodrigo Baraldo. "Raciocínio analógico no direito : entre indeterminação e segurança jurídica." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2018. http://hdl.handle.net/10183/178462.
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O raciocínio jurídico analógico tem sido visto ora como forma de raciocínio essencial ao Direito, ora como mecanismo pernicioso e arbitrário de tomada de decisões, em prejuízo ao Estado de Direito. O presente trabalho parte da hipótese de que o raciocínio analógico é mecanismo que promove segurança jurídica, e, não, indeterminação. Para sustentar tal ideia, a primeira parte desta discussão apresenta o ponto de vista de diferentes teóricos do direito que procuraram expor ou negar a existência de uma estrutura própria dessa forma de raciocínio. A segunda parte, por sua vez, propõe um balanço acerca dessas perspectivas, identificando-se elementos pertinentes à estrutura do raciocínio analógico e passíveis de análise específica e de crítica, com possibilidade de reformulação ou de melhor compreensão dos pontos colocados em evidência. A terceira parte, por fim, estabelece relação entre raciocínio analógico e coerência, entendendo esta como essencial para compreender de que maneira tal espécie de raciocínio pode promover segurança jurídica; para tanto, discute os conceitos de coerência e de integridade do direito, e, então, propõe que é possível verificar, do ponto de vista prático, relação entre a forma de desenvolvimento de raciocínios analógicos e os institutos jurídicos, de maneira a sustentar, por fim, que a analogia pode constituir mecanismo de segurança jurídica e de densificação do direito. O trabalho conclui que o raciocínio analógico desempenha papel relevante no Estado de Direito, nem sempre percebido como tal.Analogical legal reasoning has been seen both as a form of reasoning essential to the law and as a pernicious and arbitrary mechanism of decision-making, undermining the rule of law. The present work is based on the hypothesis that analogical reasoning is a mechanism that increases legal certainty, not indetermination. To support this idea, the first part of this discussion presents the point of view of different legal theorists who sought to expose or deny the existence of a proper structure of this form of reasoning. The second part, in turn, proposes a balance on these perspectives, identifying pertinent elements to the structure of analogical reasoning, which are subject to specific analysis and criticism, with the possibility of reformulation or better understanding of the highlighted points. The third part, finally, establishes a relation between analogical reasoning and coherence, understanding this as essential to comprehend how this kind of reasoning can promote legal certainty; for this, it discusses the concepts of coherence and integrity of the law, and then it proposes that it is possible to verify, from a practical point of view, the relationship between the development of analogical reasoning and institutions of law, in order to sustain, lastly, that analogy can constitute a mechanism of legal certainty and densification of the law. This work concludes that analogical reasoning plays a relevant role in the rule of law, not always perceived as such.
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Hazelwood, Lisa L. "Deficits in Miranda Comprehension and Reasoning: The Effects of Substance Use and Attention Deficits." Thesis, University of North Texas, 2009. https://digital.library.unt.edu/ark:/67531/metadc12132/.
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Each year, an estimated 318,000 defendants who do not comprehend the Miranda warnings waive their rights and provide incriminating evidence without the protection of counsel (Rogers, 2008), which make Miranda-related competencies one of the most pervasive pretrial issues. A wide range of issues could potentially affect an individual's capacity to provide a knowing and intelligent waiver. Previous Miranda research has focused narrowly on the effects of cognitive and developmental factors. The current study added to the Miranda literature by examining the impact of two highly prevalent conditions found in correctional populations, attention deficits and substance abuse. Adult defendants in custody (N = 118) were evaluated within 36 hours of arrest in order to assess both chronic psychological disorders and situational variables. Results indicate that attention deficits have a significant impact on defendants' ability to provide a knowing Miranda waiver, whereas substance use profoundly affected their reasoning about Miranda waiver decisions. This study represents the first systematic investigation of the effect of transient mental states on Miranda-related abilities with criminal defendants. Important implications for forensic practice are addressed.
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Barba, Rafael Giorgio Dalla. "A (in)transparência dos direitos fundamentais: das origens aos limites da teoria discursiva em Robert Alexy." Universidade do Vale do Rio dos Sinos, 2017. http://www.repositorio.jesuita.org.br/handle/UNISINOS/6653.
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O trabalho aborda a problemática da argumentação jurídica em decisões judiciais que interpretam e aplicam normas de direitos fundamentais. Essa abordagem é realizada sob a perspectiva da teoria discursiva de Robert Alexy, importante jusfilósofo alemão contemporâneo. O primeiro capítulo expõe algumas origens e fundamentos filosóficos que amparam a estrutura básica da sua teoria, demonstrando pormenorizadamente a relação da dicotomia entre deveres perfeitos e imperfeitos em Kant com a distinção estrutural entre regras e princípios. O segundo capítulo realiza uma reconstrução compilada dos elementos centrais da teoria discursiva de Alexy, vinculando a teoria dos princípios com a teoria da argumentação jurídica, sem deixar de abordar o formato da relação entre Direito e Moralidade no pensamento do autor. O terceiro capítulo, por sua vez, traz o desenvolvimento da discussão filosófica e metodológica exposta anteriormente diante de um caso concreto julgado pelo Supremo Tribunal Federal, demonstrando não apenas a simplificação da fundamentação utilizada pela Corte Constitucional, mas também os limites do procedimento discursivo apresentado por Alexy para garantir a racionalidade da argumentação jurídica. O trabalho tem como finalidade básica uma exposição geral da teoria discursiva de Alexy a partir de alguns de seus alicerces filosóficos, tomando como fio condutor a questão da discricionariedade judicial e os reflexos práticos. Além disso, oferece algumas críticas a sua proposta, apontando três possíveis objeções a esse modelo teórico, que correspondem respectivamente aos três componentes centrais da teoria discursiva: a teoria dos princípios, a teoria da argumentação jurídica e o conceito não-positivista inclusivo de Direito. A metodologia utilizada no desenvolvimento do trabalho se realizou a partir de extensa consulta e revisão bibliográfica em material especializado e apropriado à temática. Como resultados parciais, pode-se dizer que a partir do referencial filosófico adotado por Alexy, a sua teoria discursiva pode oferecer recursos importantes para encarar a problemática da fundamentação das decisões judiciais, inclusive por meio da incorporação de critérios de racionalização dos argumentos morais que ingressam no discurso jurídico, mas ainda permanece um considerável espaço de discricionariedade para determinar a justificação da decisão judicial, cujo resultado pode variar devido a valorações diversas e impasses, ratificando inclusive posições antagônicas.
The thesis addresses the issue of legal argumentation in judicial decisions that interpret and apply fundamental rights norms. This approach is taken out from the perspective of the discursive theory of Robert Alexy, an important contemporary German philosopher. The first chapter exposes some philosophical origins and foundations that support the basic structure of his theory, showing in details the relationship from the dichotomy between perfect and imperfect duties in Kant to the structural distinction between rules and principles. The second chapter performs a compiled reconstruction of the central elements of Alexy’s discursive theory, linking the theory of principles with the theory of legal argumentation, while addressing the relationship between law and morality in the author's thinking. The third chapter, in turn, brings the development of the philosophical and methodological discussion previously exposed a judicial case judged by the Federal Supreme Court, demonstrating not only the simplification of the reasoning used by the Constitutional Court, but also the limits of the discursive procedure presented by Alexy to ensure the rationality of legal argumentation. The thesis has as its basic purpose a general exposition of Alexy's discursive theory based on some of its philosophical foundations, taking as its guiding line the problem of judicial discretion and practical reflexes. In addition, it offers some critics to this proposal, pointing out three possible objections to this theoretical model, which correspond respectively to the three central components of discursive theory: theory of principles, theory of legal argumentation and the inclusive non-positivist concept of Law. The methodology used on the development of the college paper was taken out from extensive consultation and bibliographical review in specialized material appropriate to the theme. As partial results, from the philosophical reference adopted by Alexy, his discursive theory can offer important resources to face the problem of legal reasoning in judicial decision, including by incorporating rationalization criteria of moral arguments that enter on legal discourse, but still remains a considerable discretion space to determine the justification of judicial decision, in order that the result may vary due to different values and deadlocks, ratifying even antagonistic positions.
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García, Figueroa Alfonso. "Neo-Constitutionalism and Legal Reasoning." Pontificia Universidad Católica del Perú, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/115635.
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This paper aims to explore the functions of the theory of legal argumentation (TLA) on Constitutional States and will especially focus on the political and self-reflective functions of the TLA within the framework of a neo-constitutionalistic legal theory. The first part of the paper includes a definition of the TAL and an analysis of its main functions. At the end of the paper the author provides the bases for the development of a neoconstitutionalistic legal theory.Este trabajo pretende explorar las funciones de la teoría de la argumentación jurídica (TAJ) en los Estados constitucionales y se concentrará en subrayar las funciones políticas y autorreflexivas de la TAJ en el marco de una teoría del Derecho neoconstitucionalista. La primera parte incluye una definición de la TAJ y un examen de sus funciones generales. En la parte final, el autor ofrece un programa para el desarrollo de una teoría neoconstitucionalista.
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Williams, Ian Scott. "English legal reasoning and legal culture, c.1528-c.1642." Thesis, University of Cambridge, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.612476.
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Tamouza, Ahlem. "Les cultures dans la jurisprudence de la Cour européenne des droits de l'homme." Thesis, Paris 3, 2019. http://www.theses.fr/2019PA030024.
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La diversité culturelle interétatique ainsi que diverses cultures nationales et sociétales sont régulièrement invoquées par la Cour européenne des droits de l’Homme. Un constat de récurrence et de diversité des références aux cultures dans la jurisprudence européenne conduit à poser la question de savoir comment la Cour utilise les cultures dans l’exercice de son office. L’objectif est donc de découvrir, à partir d’une analyse de discours, les contours et la raison d’être d’« usages des cultures » en droit européen des droits de l’Homme. Divers usages peuvent, d’abord, être relevés. Par exemple, la Cour prend en compte des intérêts culturels sociétaux, interprète la Convention à la lumière de la culture sociétale, ou encore mobilise les cultures pour justifier certains choix juridictionnels. Bien que divers et inconstants, les usages identifiés ont pour caractéristique de s’écarter d’une méthode de contrôle habituelle. Ils viseraient le prononcé d’un choix intermédiaire ou d’une solution qui n’auraient pu être présentés à l’issue d’un raisonnement habituel. S’ils semblent, de ce fait, opportunistes et procéder de l’exercice d’un pouvoir discrétionnaire, les usages des cultures ont cependant la particularité de pouvoir renforcer la motivation des jugements – et ainsi de compenser le manque en légitimité qu’un choix discrétionnaire entrainerait. Une certaine valeur argumentative peut, en effet, être reconnue aux références aux et à la prise en compte des cultures. Finalement constitutif de l’exercice de l’office du juge, le recours aux cultures est apparu utile dans le contrôle juridictionnel et opportun au regard de la réception des jugements rendus par la CourThe inter-State cultural diversity as well as the various national and societal cultures are regularly invoked by the European Court of Human Rights. The diversity and the recurrence of the references to cultures in the legal precedents lead to the question of how the Court uses national and societal cultures in the exercise of its function. Thus, the purpose is to shed light on the characteristics and the raison d’être of the “uses of cultures” in European human rights law. First, a discourse analysis unveils a variety of uses in the Court’s reasoning. For instance, it shows the Court takes into account cultural interests, interprets the Convention in the light of the cultural context, and invokes cultures to account for its own decisions. Secondly, the common feature of the diverse uses of cultures appears to be their exceptional nature. While using cultures, the Court does not follow a usual method of monitoring. Hence, it uses cultures exceptionally to deliver a decision different from the one that would have been taken following a regular reasoning. In that respect, the uses of cultures appear to stem from the exercise of a discretionary power that can be regarded as a threat to the European judge’s legitimacy. However, the references to and the consideration of cultures display the special capacity of having an argumentative power. Initially considered as a component of the Court’s reasoning, the uses of cultures ultimately deem to be relevant in the motivation of the Court’s discretionary decisions
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Chorley, Alison. "Reasoning with legal cases seen as theory construction." Thesis, University of Liverpool, 2006. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.443914.
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Salwén, Håkan. "Hume's law : an essay on moral reasoning." Doctoral thesis, Stockholms universitet, Filosofiska institutionen, 2003. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-81500.
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Al, Abdulkarim L. M. "Representation of case law for argumentative reasoning." Thesis, University of Liverpool, 2017. http://livrepository.liverpool.ac.uk/3007026/.
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Modelling argumentation based on legal cases has been a central topic of AI and Law since its very beginnings. The current established view is that facts must be determined on the basis of evidence. Next, these facts must be used to ascribe legally significant predicates (factors and issues) to the case, on the basis of which the outcome can be established. This thesis aims to provide a method to encapsulate the knowledge of bodies of case law from various legal domains using a recent development in AI knowledge representation, Abstract Dialectical Frameworks (ADFs), as the central feature of the design method. Three legal domains in the US Courts are used throughout the thesis: The domain of the Automobile Exception to the Fourth Amendment, which has been freshly analysed in terms of factors in this thesis; the US Trade Secrets domain analysed from well-known legal case-based reasoning systems (CATO and IBP); and the Wild Animals domain analysed extensively in AI and Law. In this work, ADFs play a role akin to that of Entity-Relationship models in the design of database systems to design and implement programs intended to decide cases, described as sets of factors, according to a theory of a particular domain based on a set of precedent cases relating to that domain. The ADFs in this thesis are instantiated from different starting points: factor-based representation of oral dialogues and factor-based analysis of legal opinions. A legal dialogue representation model is defined for the US Supreme Court Oral Hearing dialogues. The role of these hearings is to identify the components that can form the basis of an argument that will resolve the case. Dialogue moves used by participants have been identified as the dialogue proceeds to assert and modify argument components in term of issues, factors and facts, and to produce what are called Argument Component Trees (ACTs) for each participant in the dialogue, showing how these components relate to one another. The resulting trees can be then merged and used as input to decide the accepted components using an ADF. The model is illustrated using two landmark case studies in the Automobile Exception domain: Carney v. California and US v. Chadwick. A legal justification model is defined to capture knowledge in a legal domain and to provide justification and transparency of legal decisions. First, a legal domain ADF is instantiated from the factor hierarchy of CATO and IBP, then the method is applied to the other two legal domains. In each domain, the cases are expressed in terms of factors organised into an ADF, from which an executable program can be implemented in a straightforward way by taking advantage of the closeness of the acceptance conditions of the ADF to components of an executable program. The proposed method is evaluated to test the ease of implementation, the efficacy of the resulting program, the ease of refinement, transparency of the reasoning and transferability across legal domains. This evaluation suggests ways of improving the decision by incorporating the case facts, and considering justification and reasoning using portions of precedents. The final result is ANGELIC (ADF for kNowledGe Encapsulation of Legal Information from Cases), a method for producing programs that decide the cases with a high degree of accuracy in multiple domains.
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Kruuse, Helen. "Substantive second-level reasoning and experiential learning in legal ethics." Juta Law Publishing, 2012. http://hdl.handle.net/10962/68983.
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Publisher versionThis article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
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Hunter, Daniel Ashley Douglas. "Processes in precedent : a multiple-constraint model of legal reasoning." Thesis, University of Cambridge, 1999. https://www.repository.cam.ac.uk/handle/1810/251675.
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This dissertation examines what it means to decide a legal case according to precedent. I present a descriptive model of precedent, which relies on cognitive science studies of human reasoning to explain some characteristics of precedential reasoning. My basic thesis is that the traditional view of precedential reasoning is an inadequate descriptive model of how adjudication actually operates. The traditional view suggests that precedential reasoning involves the deductive application of a rule to the undecided case, where the rule is derived either from other precedents or from a fundamental legal or moral principle. On this view, precedential reasoning is just a modified form of deductive reasoning. I shall suggest that this view does not account for the freedom judges have to ignore precedent that might seem to bind them, and equally the constraints judges feel upon them to decide according to precedent in situations where they are not bound. To counter this, I present a model which relies on three fundamental concepts. First, I suggest that precedential reasoning involves two inter-linked processes of discovery and justification. Discovery is the process by which a judge concludes that a precedent can be applied to the current case, on account of a number of similarities between the precedent and the case. Justification is the process of explaining why a particular 'discovered' precedent should apply to the current case. The second major concept is the idea of constraints on decision-making. Rather than suggesting that legal cases or rules are the only constraints on precedential reasoning, I shall show that many other psychologically-explicable constraints operate when judges decide cases. These constraints include the effect of metaphors, the nature of analogical reasoning, and the effect of inductive inference. The final fundamental concept is the application of Gestalt psychology to understand how these constraints can unconsciously affect precedential reasoning. Using this approach, I show how it can be that judges can be constrained, but be unaware of those constraints.
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Portmann, Roland. "Legal personality in international law /." Table on contents, 2009. http://aleph.unisg.ch/hsgscan/hm00231691.pdf.
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Delacroix, Sylvie. "Legal normativity without natural law." Thesis, University of Cambridge, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.619600.
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Field, Stewart. "Legal forms, legal ideology and the early factory inspectorate." Thesis, University of Oxford, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.335857.
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Shams, El-Din Heba Mahmoud Mokhtar. "Globalisation as a legal problematic : balancing legal efficiency against legal principle : the case of money laundering." Thesis, Queen Mary, University of London, 2002. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1900.
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Over the relatively short period of the last three decades, an extensive body of law, both penal and regulatory, has developed in order to prevent and to control th1s seemingly burgeoning phenomenon of money laundering. Initial examination of this body of law immediately reveals that it is a legal order that pushes against the traditional frameworks of criminal justice. For example, this new legal order persistently rings "alarm bells" regarding its compatibility with such fundamental principles as the presumption of innocence, the principle of legality, the immunity against double jeopardy, and the rights to privacy especially financial privacy. It also blurs the public nature of policing, the prosecutorial burden of proof and the jurisdictional territoriality of criminal law. Its formation at the international level shows strong signs of supranationalism that challenges State sovereignty and the principle of consent in international law. This tension between money laundering law and traditional legal principles poses two related questions: (1) What is the reason for this apparent exceptionality of money laundering law?; and (2) How could the tension between law and principle be resolved? As conventional wisdom has it, understanding the law can-not be disassociated from its social context. Certainly, understanding money laundering law is only possible through an understanding of the process of social change that shaped it. During these past three decades "globalisation" characterised the process of social change that has been gathering momentum. It is this context that has instigated and shaped money laundering law. Globalisation has been propelled by both rapid technological innovation that rendered massive instantaneous communication possible as well as extensive processes of de-regulation and liberalisation. The combined effect of these developments was the emergence of non-state actors that operate across national borders and master substantial economic and informational power. Meanwhile, the State, as the primary agency of governance, has remained jurisdictionally territorial while becoming less dominantly powerful. Both features have resulted in a "governance crisis" and has turned globalisation into a "legal problematic. " The core thesis that emerges from this contextual analysis is that money laundering law is a response to globalisation as a legal problematic. As a solution, it employs six modalities of governance: de- glob alisation, extraterritorialisation, harmonisation, co-operation, privatisation and supranatinl-ql--,] -iq---ti,o, n, which are characterised by deviation from traditional legal principles. In terms of its modalities and their characteristics, money laundering law is not a unique response to the legal problematic. It is part of a current and general trend in legal governance. Resolving the tension between this trend and traditional legal principles is a two-way process that involves revising both the law and the principles. In presenting this thesis, the volume will be organised into seven chapters. Following ail introductory Chapter, Chapters Two and Three will analyse the legislative policy underlying money laundering law by conducting contextual and historical analysis. Chapters Four, Five and Six will expound upon the six modalities utilised by money laundering law to address the governance problem posed by globalisation. Finally, Chapter Seven will sum up the argument and suggest some direction for the future.
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Mayer, Peter W. "Extra-legal factors in the American legal system." Oberlin College Honors Theses / OhioLINK, 1986. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1316113331.
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Delanlssays, Thomas. "La motivation des décisions juridictionnelles du Conseil d’Etat." Thesis, Lille 2, 2017. http://www.theses.fr/2017LIL20018.
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Cette étude se donne pour ambition de saisir et de comprendre ce qu’est la motivation des décisions juridictionnelles du Conseil d’État, au demeurant souvent critiquée. Notion fondamentale en droit processuel, la motivation est un discours argumentatif, expression d’une technique juridique, à savoir un discours visant à justifier au plan juridique et factuel la décision à travers un raisonnement afin de persuader l’auditoire. Ainsi faudra-t-il analyser à la fois son architecture et ses fonctions dans une perspective dynamique. En tout état de cause, on constate,depuis au moins le début du XXIe siècle, une certaine évolution de la motivation. Ce phénomène résulte, notamment, de l’européanisation et de la complexité normatives, de la protection renforcée des droits fondamentaux, des exigences de sécurité juridique ou encore de la volonté du Conseil d’État de promouvoir une politique communicationnelle afin de légitimer son action. L’étude implique de revisiter certaines thématiques traditionnelles, en particulier le syllogismejudiciaire, l’argumentation, l’interprétation, le style de la motivation ou encore le pouvoir normatif jurisprudentiel pour constater et mesurer cette évolutionThe aim of this research is to tackle and understand the Conseil d’Etat’s court’s decisions motivation which are often criticised. Fundamental notion in procedural law, motivation is an argumentative discourse expressing a jurisdictional technique but moreover it is specifically a discourse trying trough a legal reasoning to justify a decision in order to convince the audience. Thus we shall have to analyse its architecture and its functions in a dynamic perspective. Either way we can note that since the beginning of the 21st century the court’s motivation has evolved.This phenomenon is the result of the Europeanization and the complexity of the normative production and is also due to enhanced protection of the fundamental rights, legal certainty and the Conseil d’Etat’s wish to promote a communicational policy in order to legitimise its action. This research entails to revisit certain traditional topics such as jurisdictional syllogism, argumentation, interpretation, the motivation’s style or the normative jurisprudential power to both note and measure this evolution
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Golzari, Sepideh. "A legal geographic perspective on a critical legal pluralism." Thesis, McGill University, 2010. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=95228.
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This thesis is a work of interpretation about interpretations of law. It exposes mainstream approaches of law, a critical legal pluralist approach and a legal geographic approach to methods of questioning provoked by a series of events connected to Palestinian Human Rights Week at McGill Faculty of Law. These events are used to highlight that the theoretical approach of a Critical Legal Pluralism can better account for power relations than mainstream approaches to law but, that it can nonetheless be usefully supplemented by an appreciation of Legal Geography in order to account for the how of power relations, prevent the reification of human legal agency' and make a move beyond the human/non-human binary.Ce mémoire est un travail d'interprétation sur différentes interprétations du droit. Il confronte une approche juridique traditionnelle, une approche fondée sur le pluralisme juridique critique ainsi qu'une approche de géographie du droit à des réflexions suscitées par une série d'événements en relation avec la Semaine des Droits de l'Homme en Palestine qui s'est tenue à la faculté de Droit de Mcgill. Ces événements sont utilisés afin de mettre en lumière le fait qu'une approche théorique issue du Pluralisme Juridique Critique permet de rendre mieux compte des rapports de pouvoirs que les approches traditionnelles du droit ; celle-ci peut toutefois être enrichie par la Géographie du Droit afin de rendre compte du comment des rapports de pouvoirs, prevenir la réification des "human legal agency" et dépasser l'opposition binaire humain/non-humain.
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Roth, Abraham Cornelis. "Case-based reasoning in the law a formal theory of reasoning by case comparison /." [Maastricht : Maastricht : Universiteit Maastricht] ; University Library, Maastricht University [Host], 2003. http://arno.unimaas.nl/show.cgi?fid=7482.
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Davies, John 1972. "Extra-legal and legal governance of international transactions." Thesis, McGill University, 1996. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=26730.
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Any agreement, treaty or commercial transaction needs to be governed in order to work. The New Economics of Organisation literature glosses over the fact that different parts of the same transaction may be governed in different ways. In contrast, this thesis argues for the existence of "hybrid transacting" and presents two international bargaining cases to illustrate how interstate agreements are entered into legally, but enforced extra-legally. Given that the enforcement of international agreements is extra-legal, this thesis presents two lines of argument that are designed to answer the question, why do states enter into their agreements with other states in a legal way? It is suggested that treaty law offers states two important advantages. First, treaty law is a solution to an "information ordering" problem. Second, it is suggested that treaty law operates as a baseline against which reputation can be assessed.
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CESAR, PEDRO NAVARRO. "THE DEDUCTIVE MODEL IN NEIL MACCORMICK S THEORY OF LEGAL REASONING." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2006. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=9556@1.
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COORDENAÇÃO DE APERFEIÇOAMENTO DO PESSOAL DE ENSINO SUPERIOREm 1978, Neil MacCormick publica o livro Legal Reasoning and Legal Theory com o principal objetivo de construir uma teoria do raciocínio jurídico (legal reasoning) descritiva e normativa que fosse compatível com o positivismo jurídico de H. L. A. Hart. O método utilizado para apresentar a teoria parte da reconstrução racional de casos concretos pré- selecionados. A análise das decisões judiciais oferece comprovações empíricas às teses de MacCormick e também indica o foco de sua teoria sobre o raciocínio jurídico: o estudo do processo de justificação judicial. É com base neste enfoque que o autor estabelece a divisão entre justificação de primeira ordem (first-order justification) e justificação de segunda ordem (second-order justification). A presente dissertação analisa apenas a justificação de primeira ordem, que está relacionada com a correção formal do raciocínio judicial. O modelo adotado para avaliar essa característica é a dedução, em especial o silogismo hipotético misto dos lógicos tradicionais. Para o autor escocês, a decisão judicial que lograr subsumir as variáveis do caso concreto nos componentes universais do fato operativo da regra jurídica, derivando como conclusão a conseqüência normativa daquela regra, estará justificada em um Estado que promove a legalidade (Rule of Law).
In 1978, Neil MacCormick published the book Legal Reasoning and Legal Theory with the goal of constructing a descriptive and normative theory of legal reasoning, compatible with the legal positivism of H. L. A. Hart. The author used the rational reconstruction of concrete pre-selected cases as the method to present his theory. The analysis of judicial decisions offers empirical backing to MacCormick s theses and highlights the focus of his theory of legal reasoning: the study of the process of legal justification. Based on this focus, the author establishes the split between first-order justification and second-order justification. This dissertation only analyzes the first- order justification, which is related with the formal correction of legal reasoning. The model adopted to evaluate this characteristic is deduction, especially the mixed hypothetical syllogism of traditional logicians. According to the Scottish author, the judicial decision that attempts to subsume the variables of the concrete case in the universal components of the operative fact of the legal rule, coming to the conclusion of a normative consequence of that same rule, will be justified in a State that promotes the Rule of Law.
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Veitch, T. Scott. "Moral conflict and legal reasoning : contradictions between liberalism and liberal legalism." Thesis, University of Edinburgh, 1997. http://hdl.handle.net/1842/21585.
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The thesis explores the significance of moral conflict for an understanding of the role of law and legal reasoning in contemporary society. In doing so it suggests that there are contradictions between liberalism, in a version drawn from the work of Isaiah Berlin, and liberal legalism. The thesis looks at recent critiques of liberal theory, and centrally on that provided by Alasdair MacIntyre, to help understand the significance of moral conflict in contemporary society. It then explores how a liberal understanding of moral conflict ought to view current structures of law and legal reasoning. It is here that key contradictions emerge. In focusing on both the internal justificatory practices of liberal legalism, and on those practices understood from an external point of view, the thesis draws out incompatibilities between such practices and the liberal theory here expressed. It concludes that the vested institutional power of the legal system ought to be challenged if the concerns and aspirations of such a theory are to be taken seriously.
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Aikenhead, Michael. "Legal knowledge-based systems : new directions in system design." Thesis, Durham University, 2001. http://etheses.dur.ac.uk/4384/.
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This thesis examines and critiques the concept of 'legal knowledge-based’ systems. Work on legal knowledge-based systems is dominated by work in 'artificial intelligence and law’. It seeks to automate the application of law and to automate the solution of legal problems. Automation however, has proved elusive. In contrast to such automation, this thesis proposes the creation of legal knowledge-based systems based on the concept of augmentation of legal work. Focusing on systems that augment legal work opens new possibilities for system creation and use. To inform how systems might augment legal work, this thesis examines philosophy, psychology and legal theory for information they provide on how processes of legal reasoning operate. It is argued that, in contrast to conceptions of law adopted in artificial intelligence and law, 'sensemaking' provides a useful perspective with which to create systems. It is argued that visualisation, and particularly diagrams, are an important and under considered element of reasoning and that producing systems that support diagramming of processes of legal reasoning would provide useful support for legal work. This thesis reviews techniques for diagramming aspects of sensemaking. In particular this thesis examines standard methods for diagramming arguments and methods for diagramming reasoning. These techniques are applied in the diagramming of legal judgments. A review is conducted of systems that have been constructed to support the construction of diagrams of argument and reasoning. Drawing upon these examinations, this thesis highlights the necessity of appropriate representations for supporting reasoning. The literature examining diagramming for reasoning support provides little discussion of appropriate representations. This thesis examines theories of representation for insight they can provide into the design of appropriate representations. It is concluded that while the theories of representation that are examined do not determine what amounts to a good representation, guidelines for the design and choice of representations can be distilled. These guidelines cannot map the class of legal knowledge-based systems that augment legal sensemaking, they can however, be used to explore this class and to inform construction of systems.
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Ichihashi, Katsuya. "Law and Legal Assistance in Uzbekistan." Center for Asian Legal Exchange, Graduate School of Law , Nagoya University, 2005. http://hdl.handle.net/2237/20115.
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Bridges, Paul. "Military law, soldiers and legal rights." Thesis, University of East London, 1992. http://roar.uel.ac.uk/1282/.
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The basic objective of this thesis is to see whether those subject to military law had in the past, and continue to have, the same rights and duties as a civilian. To that end Part 1, which is both narrative and analytical, traces the development of military law and punishments to ascertain whether soldiers were punished in the same way, and with the same severity as civilians. An historical approach is adopted tracing military law back to its origins in feudalism, and not simply from the establishment of Cromwell's New Model Army in the Seventeenth Century, which is traditionally seen as the forerunner of the modern army. The research for Part 1 was library based, drawing together disparate materials dealing with military and civil law and punishments, including, statutes, official documents (parliamentary debates and reports), and in relation to military law in particular, handwritten manuscripts concerning courts-martial and military life. To the same end, Part 2 of the thesis analyses modern day military law, as embodied in the Army Act 1955 and subsequent legislation It compares and analyses the trial process in British military law with that in English civil criminal law, from pre-arrest investigation to ultimate disposal by appeal or judicial review. Part 2 considers the military's approach, and its ramifications for those subject to military law, to certain "rights" which are, or have been the subject of considerable debate in civil law but have hitherto received scant, if any consideration at all in a military context. In particular an analysis is made of the soldiers position in relation to jury trials, access and availability of legal aid and representation and sentencing. The principal sources of material for this part were the Army Act 1955, parliamentary debates and reports, interviews with those concerned in the administration of military law and, of course, where available, decided cases. In contrast to Part 1, Part 2 is largely analytical.
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Vergara, Blanco Alejandro. "Administrative Law and legal method. The role of the legal doctrine." THĒMIS-Revista de Derecho, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/107340.
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Legal education is not a subject of much discussion; however, it is a fundamental matter in the formation of lawyers, and because of that, it is important for students and teachers. In the present article, the author concentrates on the instruction of Administrative Law, focusing on the role of the legal doctrine in this regard and concluding that the form and method of Administrative Law must be specific for this discipline.La enseñanza del Derecho es un tema sobre el cual no se debate mucho; sin embargo, es un asunto fundamental en la formación del abogado, por lo que es de importancia para alumnos y profesores. En el presente artículo, el autor se centra en la instrucción del Derecho Administrativo, enfocándose en el rol que tiene en ello la Doctrina y concluyendo que la forma y el método del Derecho Administrativo deben ser propios de esa disciplina.
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Stavropoulos, Nicolas E. "Objectivity in legal interpretation." Thesis, University of Oxford, 1992. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.334241.
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Marmor, Andrei. "Interpretation in legal theory." Thesis, University of Oxford, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.386453.
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Bix, Brian. "Wittgenstein and legal determinacy." Thesis, University of Oxford, 1991. https://ora.ox.ac.uk/objects/uuid:fd66944d-fc4b-4b67-8824-3c820900b49f.
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In the jurisprudential literature, much attention has recently been given to the role of language within law, with various writers asserting that certain theories of meaning or theories of interpretation offer new insights into the nature of law. My survey of portions of this on-going debate will have two overlapping foci: the issue of legal determinacy and the application of Ludwig Wittgenstein's ideas to legal theory. In the context of a number of different discussions, I argue that a proper understanding of the nature of language and its role within law compels neither the conclusion that law is radically indeterminate nor the conclusion that law is completely determinate. I disagree with the usual reading of H.L.A. Hart on "open texture", arguing instead that Hart's argument was as much about the proper way to apply legal rules as it was about the nature of language. I offer a reading of Wittgenstein's rule-following considerations which differs from Saul Kripke's reading as well as from the reading some legal theorists have offered, and which I believe justifies only a modest view of the direct applicability of Wittgenstein to jurisprudence. I argue that Ronald Dworkin's recent work leaves a number of unresolved questions regarding right-answer theories and that there are basic difficulties with his holistic-interpretative approach to law. Finally, I discuss Wittgenstein's critique of platonism as part of an argument that Michael Moore's metaphysically realist approach to law offers no advantages compared to more conventional approaches.
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Landskron, Rolf. "Common-law and civil-law legal families : a misleading categorisation." ePublications@bond, 2008. http://epublications.bond.edu.au/theses/landskron.
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This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.
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Gratjios, George A. "Airport noise pollution legal aspects." Thesis, McGill University, 1990. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=59857.
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This dissertation broadly explores the problems of aircraft noise in the vicinity of major airports.Part 1 defines the technical terms of noise and sonic boom and discusses their harmful effects on airport neighbours and their environment.
Part 2 reviews international legal regulations, commencing with the conference convened by the British Government in 1966, and ending with the ICAO Council proposals to be addressed at the 28th (Extraordinary) Session of the Assembly, in October 1990. Further, ICAO efforts in balancing the conflicting interests between developed and developing countries is highlighted, and the legal status of Annex 16 on Environmental Protection is discussed in some detail.
Part 3 examines national legislation relating to aircraft noise with an emphasis on the approach of the United States.
Part 4 canvasses liability issues through an analysis of the jurisprudence in various countries with a concentration on litigation in the United States. Of particular relevance is the applicability of the 1952 Rome Convention with respect to damages caused by noise and sonic boom.
Part 5 examines and evaluates proposed and already implemented solutions to the airport noise problem.
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Sousa, Goncalo. "A legal reasoning component of a network security command and control system." Thesis, Monterey, California. Naval Postgraduate School, 2010. http://hdl.handle.net/10945/5457.
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Approved for public release; distribution is unlimitedThere are numerous computer-aided tools to enable Computer Network Defense. However, their effectiveness in countering attacks is less than optimal when they are used independently of one another. Research has identified the requirements for an integrated command and control (C2) system that is able to conduct full-spectrum operations in the cyberspace environment. The most notable of that research revolves around the development and experimentation with the prototype system known as Cyber Command, Control and Information Operations System (C3IOS). C3IOS provides for a loose confederation of the cooperating systems with interaction between systems going through C2 interfaces. In this thesis, the authors introduce into C3IOS a means to support the commander's ability to take measured responses to coercive actions in a timely manner, specifically to facilitate the interaction between experts in the law of information conflict and information warriors responding to a cyber attack. The authors' research results in a set of use cases and requirements for the C2 understanding, planning, and deciding activities involved in such a capability, using Schmitt's analysis as an example.
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Dementis, Georgios Sousa Goncalo. "A legal reasoning component of a network security command and control system." Monterey, California : Naval Postgraduate School, 2010. http://edocs.nps.edu/npspubs/scholarly/theses/2010/Mar/10Mar%5FDementis.pdf.
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Thesis (M.S. in Computer Science)--Naval Postgraduate School, March 2010.Thesis Advisor(s): Michael, James B. Second Reader: Wingfield, Thomas C. ; Sarkesain, John F. "March 2010." Description based on title screen as viewed on April 26, 2010. Author(s) subject terms: Cyberspace, Cyberspace Defense, Network Defense, Distributed Systems, Command and Control, Battle Management, Information Assurance, Situational Awareness. Includes bibliographical references (p. 73-77). Also available in print.
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Anderson, Scott Alan. "Legal indeterminacy in context." Columbus, Ohio : Ohio State University, 2006. http://rave.ohiolink.edu/etdc/view?acc%5Fnum=osu1162267088.
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