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The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers

Shihab al-Din Ahmad ibn Idris al-Qarafi al-Maliki

in The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers

This chapter presents the English translation of the Introduction of the Criterion. Here, the author discusses the meaning of legal opinion, judicial ruling, and administrative acts, and how the book ... More

This chapter presents the English translation of the Introduction of the Criterion. Here, the author discusses the meaning of legal opinion, judicial ruling, and administrative acts, and how the book provides a comprehensive treatment of these issues. The book is composed in the form of a series of questions, in the manner that replicates the discussions that took place between the author's colleagues and himself. The answer immediately follows each question, pointing out the subtleties of these points and the issues that derive from them, as manifested in judicial decisions, legal opinions, and administrative acts of public officials. The book contains forty questions.Less

Frankfurter and the Intellectualization of Judicial Restraint

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial ... More

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial review were a product of deep professional indoctrination as well as political expediency.Less

First-Person Perspectives in Legal Decisions

Lorenz Kaehler

in Law and Language: Current Legal Issues Volume 15

A centrepiece of almost any legal theory is the judge and the role he plays in adjudication. However, this central role of judges is not always reflected in the language they use, which is best seen ... More

A centrepiece of almost any legal theory is the judge and the role he plays in adjudication. However, this central role of judges is not always reflected in the language they use, which is best seen in the way they refer to themselves. Some courts such as the European Court of Justice and the German Supreme Court totally avoid direct reference to themselves in the first person singular or plural. For them it is a taboo to say ‘we’ or ‘I’ in an opinion. In contrast, judges in the British Supreme Court and other English courts not only issue individual opinions, but frequently refer to themselves by ‘I’ or use expressions such as ‘it seems to me’. How, then, can one explain these differences and why is the crucial role of the judges not always reflected in the language they use? This chapter first considers some opinions using the first-person perspective and some decisions avoiding it. The chapter then asks whether one can transform these perspectives into each other and express the same content either by personalized or by depersonalized statements. Next, it looks look at the limits on the transformation of personal expressions into impersonal ones. Finally, the chapter examines the reasons for the use or avoidance of the first-person perspective. The chapter concludes that there are trade-offs to be made between these uses. On the one hand, the first-person perspective best allows the expression of personal beliefs. On the other hand, it discourages the formation of general rules which can best justify legal decisions.Less

A Question of Degree

in Constitutional Conscience: The Moral Dimension of Judicial Decision

This chapter examines how a constitutional decision maker might go about making interpretive choices in addressing a constitutional question that is open to more than one plausible answer. It focuses ... More

This chapter examines how a constitutional decision maker might go about making interpretive choices in addressing a constitutional question that is open to more than one plausible answer. It focuses on a legal opinion that a nineteenth-century attorney general, Amos Akerman, gave the president. It shows that Akerman modeled an approach to addressing disputable questions of constitutional law that employs legal craftsmanship not to conceal difficulties or hidden springs of decision but to render them transparent and thus to enable the reader to evaluate critically the conclusions reached by the writer. Such an approach brings the language of constitutional interpretation into accord with the reality of constitutional decision, and in doing so satisfies the duties of the constitutional conscience. The chapter also addresses the parallel between constitutional interpreters in the political branches (Akerman, for example) and judges making constitutional decisions. It concludes that while there are differences, they are more a matter of degree than of kind, and extreme skepticism about political-branch interpretation is unnecessary and inappropriate, and likely to be self-fulfilling.Less

Legislation and reforming opinion

Susan Wood

in The Proprietary Church in the Medieval West

The chief external constraint on property-right in churches, from the first, was the tenuous but never defunct authority of bishops over their founding, manning, and functioning (with the spasmodic ... More

The chief external constraint on property-right in churches, from the first, was the tenuous but never defunct authority of bishops over their founding, manning, and functioning (with the spasmodic support of rulers). The bishops' conception of this authority and its proper exercise, along with the responsiveness to it of clergy, monks, and laity, depended on the changing background of ideas and the development of law and opinion. This chapter examines the articulate opinions of leading churchmen or canonists, usually formed or expressed at councils, regarding the practical workings of proprietary churches under customary law. In Francia, the mid-eighth-century reforms as a whole may have been seen as a threat, not only by those enjoying the fruits of secularization, but also by founders and lords of lesser churches and monasteries.Less

Israel: Conversion to Judaism in a Jewish Society

in Pledges of Jewish Allegiance: Conversion, Law, and Policymaking in Nineteenth- and Twentieth-Century Orthodox Responsa

This chapter examines halakhik rulings on conversion in Israel, not only those issued by Orthodox rabbis but also secular legal opinions from Israel's courts, including the Israeli Supreme Court. In ... More

This chapter examines halakhik rulings on conversion in Israel, not only those issued by Orthodox rabbis but also secular legal opinions from Israel's courts, including the Israeli Supreme Court. In particular, it looks at the impact of reconstituted Jewish sovereignty on Orthodox jurists as they tried to define Jewish status and identity for secular and religious Jews who have returned to the Jewish homeland after 2,000 years. It discusses how the decisions of halakhic authorities regarding conversion have been affected by two facts: that Israel is a Jewish state with a Jewish majority and that posekim in Israel are making both religious and public policies for a national entity. The chapter considers the views of five chief rabbis with regards to conversion: Abraham Isaac Kook, Ben-Zion Meir Uziel, Ovadiah Yosef, Isaac Halevi Herzog, and Shlomo Goren.Less

Conclusion

in Pledges of Jewish Allegiance: Conversion, Law, and Policymaking in Nineteenth- and Twentieth-Century Orthodox Responsa

This book has analyzed decisions rendered by Orthodox rabbis throughout the world regarding conversion over the past 200 years. It has looked at the attitudes of many posekim toward conversion and ... More

This book has analyzed decisions rendered by Orthodox rabbis throughout the world regarding conversion over the past 200 years. It has looked at the attitudes of many posekim toward conversion and intermarriage as well as their approaches to Jewish law and Jewish communal life. The rabbis' legal opinions also reflect their conceptions of the essence of Judaism and define the borders of the modern Jewish community. These posekim were not just legal arbiters who decided individual cases; they also framed public policy for Jews who have struggled during the last two centuries to address the overarching issues of Jewish identity, status, conversion, community, and religion at a time when intermarriage and religious non-observance have been (and are likely to remain) widespread.Less

Hungarian and Central European Writings on Conversion and Intermarriage

in Pledges of Jewish Allegiance: Conversion, Law, and Policymaking in Nineteenth- and Twentieth-Century Orthodox Responsa

During the conclusion of the eighteenth century and the beginning of the nineteenth, Emancipation and Enlightenment had a negligible impact on Jewish religion and society in Hungary. The Hungarian ... More

During the conclusion of the eighteenth century and the beginning of the nineteenth, Emancipation and Enlightenment had a negligible impact on Jewish religion and society in Hungary. The Hungarian Jews remained very religiously observant, and the Reform Movement was not yet a major force on the Jewish scene in Central Europe. Endogamy was still prevalent, with Jews and Christians rarely interacting as social equals. This apparent quiescence is evident in the sermons and legal opinions of Orthodox rabbis of the period, including Moses Schreiber (1768–1839), considered the architect of ultraorthodox Judaism. This chapter examines the responsa written by Schreiber and other Hungarian and Central European rabbis, such as Akiva Eger, Eliyahu Guttmacher, Judah Aszod, Akiva Yosef Schlesinger, and Maharam Schick, regarding conversion and intermarriage.Less

The Effects of the Preliminary Ruling

Morten Broberg and Niels Fenger

in Broberg and Fenger on Preliminary References to the European Court of Justice

Chapter 12 considers the binding effect of a preliminary ruling. The chapter deals with the effects of a preliminary ruling on the main proceedings, it examines the effect of the ruling on cases ... More

Chapter 12 considers the binding effect of a preliminary ruling. The chapter deals with the effects of a preliminary ruling on the main proceedings, it examines the effect of the ruling on cases other than the one that has given rise to the preliminary reference. It also discusses the legal significance of the Advocate General’s Opinion, and it analyses the temporal effect of a preliminary ruling. Finally, the question of the interpretation and revision of a preliminary ruling is dealt with.Less

Some Reflections on Lord Rodger’s Contribution to the Development of the Common Law

Lord Dyson

in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry

This chapter reflects on Lord Rodger's judgments, which show that his approach to the common law was not that of a revolutionary. His great strength was his intellectual honesty, tenacious respect ... More

This chapter reflects on Lord Rodger's judgments, which show that his approach to the common law was not that of a revolutionary. His great strength was his intellectual honesty, tenacious respect for precedent, logical analysis, and clarity of expression laced with a devastating turn of phrase. It reviews a number of Lord Rodger's common law judgments, including the mesothelioma cases of Fairchild v Glenhaven Funeral Services and Barker v Corus (UK) Plc; D v East Berkshire Community NHS Trust; Gray v Thames Trains Ltd; and Watkins v Secretary of State for the Home Department.Less

Replication and Pooling

Michael B. Bracken

in Risk, Chance, and Causation: Investigating the Origins and Treatment of Disease

This chapter is concerned primarily with using replication to rule out chance as an explanation for study results. New hypotheses are derived from many sources, such as from observations in the ... More

This chapter is concerned primarily with using replication to rule out chance as an explanation for study results. New hypotheses are derived from many sources, such as from observations in the laboratory or in the clinic, by analogy from other data, as well as by failure to replicate an early study result. If the scientific process is to move forward in an orderly and systematic fashion, and if clinical guidelines, legal opinions, and public health policies are to be based on sound evidence, validating a study result through replication must be a priority. It must be noted that replication does not mean exactly repeating the methods used in previous experiments because mistakes committed there may carry over to the new experiment. Instead, replication should be a series of studies of improving methodology as one learns from the previous mistakes. New studies are not merely replicas of earlier research; they should be based on all of the evidence to date.Less

Bombay Government Opinions about the Report: Speaking to Deaf Ears

Michael D. Metelits

in The Arthur Crawford Scandal: Corruption, Governance, and Indian Victims

Chapter 7 explores some of the contemporary criticisms of the findings, procedures, and precedents of the Crawford Commissioners’ report that set the scene for the ensuing chapters. The chapter also ... More

Chapter 7 explores some of the contemporary criticisms of the findings, procedures, and precedents of the Crawford Commissioners’ report that set the scene for the ensuing chapters. The chapter also chronicles reasons for disagreement between several levels of the government. It focuses on dissent, mainly by the Government of Bombay officials, to the procedures and rationale of the commissioners who sat in judgment of Crawford. This chapter captures the frustration of local officials at seeing local savvy and understanding overcome by inappropriate ideas and procedures followed at a higher level of government.Less