Brian Bornstein and Monica Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.001.0001
- Subject:
- Psychology, Forensic Psychology
The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness ...
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The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness swearing to tell “the truth, the whole truth, and nothing but the truth, so help me God,” and so on. But there are numerous other, often subtle ways in which religion and law intersect. This book reviews legal developments and behavioral science research concerning the effects of religion on legal practice, decision making processes of various legal actors, and trial outcomes. For example, religious beliefs might influence the decisions of legal decision makers, such as judges and jurors. Attorneys might rely on religion, both in the way they approach their professional practice generally and in specific trial tactics (e.g., using a scriptural rationale in arguing for a particular trial outcome). This book covers these and related topics in exploring how religion affects the actions of all of the major participants at trial: jurors, judges, attorneys, and litigants.Less
The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness swearing to tell “the truth, the whole truth, and nothing but the truth, so help me God,” and so on. But there are numerous other, often subtle ways in which religion and law intersect. This book reviews legal developments and behavioral science research concerning the effects of religion on legal practice, decision making processes of various legal actors, and trial outcomes. For example, religious beliefs might influence the decisions of legal decision makers, such as judges and jurors. Attorneys might rely on religion, both in the way they approach their professional practice generally and in specific trial tactics (e.g., using a scriptural rationale in arguing for a particular trial outcome). This book covers these and related topics in exploring how religion affects the actions of all of the major participants at trial: jurors, judges, attorneys, and litigants.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.007
- Subject:
- Psychology, Forensic Psychology
This chapter considers the role that religion plays in routine legal practice. This matter raises a host of related questions, such as: How religiously diverse is the legal profession in the United ...
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This chapter considers the role that religion plays in routine legal practice. This matter raises a host of related questions, such as: How religiously diverse is the legal profession in the United States? Does religion have a place in legal education, in either secular or religious law schools? How do religious lawyers reconcile their faith with the sometimes competing demands of their profession (e.g., representing clients who have committed unscrupulous or even evil acts)? A growing “Religious Lawyering Movement” has addressed many of these issues, and the chapter draws on that literature here.Less
This chapter considers the role that religion plays in routine legal practice. This matter raises a host of related questions, such as: How religiously diverse is the legal profession in the United States? Does religion have a place in legal education, in either secular or religious law schools? How do religious lawyers reconcile their faith with the sometimes competing demands of their profession (e.g., representing clients who have committed unscrupulous or even evil acts)? A growing “Religious Lawyering Movement” has addressed many of these issues, and the chapter draws on that literature here.
Karen J. Alter
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691154749
- eISBN:
- 9781400848683
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691154749.003.0004
- Subject:
- Political Science, International Relations and Politics
This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has ...
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This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has increasingly become embedded into domestic law and institutions. Although the same fundamental motive drives delegation to courts across time, key historical events have been needed to increase bottom-up demands and make governments and legislatures open to accepting greater international judicial oversight. At the end of World War II, governments were able to reject proposals for compulsory international judicial oversight of their behavior. Changes in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad.Less
This chapter addresses the question of why states become increasingly willing to submit to international judicial oversight, highlighting how legal practice has changed and how international law has increasingly become embedded into domestic law and institutions. Although the same fundamental motive drives delegation to courts across time, key historical events have been needed to increase bottom-up demands and make governments and legislatures open to accepting greater international judicial oversight. At the end of World War II, governments were able to reject proposals for compulsory international judicial oversight of their behavior. Changes in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad.
William Talbott
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195173482
- eISBN:
- 9780199872176
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195173482.001.0001
- Subject:
- Philosophy, Political Philosophy
This book explains the development of human rights as a process of moral improvement in ground level moral and legal practices. This leads to a consideration of the process by which moral and legal ...
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This book explains the development of human rights as a process of moral improvement in ground level moral and legal practices. This leads to a consideration of the process by which moral and legal practices are improved. The book focuses on moral improvement and then shows how to apply the model of moral improvement to improvements in the law. The book reconstructs moral improvement as a process of making exceptions to status quo moral practices. It introduces a meta-level consequentialist (though not utilitarian) principle, the main principle, as a sufficient condition for an improvement in a ground-level moral practice. Because the main principle is a meta-level explanatory principle, not itself a part of any ground-level moral practices, it is an indirect consequentialist principle. The rough idea of the main principle is that it endorses a change to the status quo ground-level moral practices as a moral improvement, if, when evaluated both as a substantive practice and a practice of implementation, the change would make the overall system of social practices one that does a better job of equitably promoting life prospects (a probabilistic measure of well-being) than the status quo practices and better than any of the other relevant alternatives to the status quo. The main principle is not utilitarian, because it is sensitive to the distribution of life prospects (well-being). The book uses the main principle to explain why all societies everywhere can improve their ground-level moral and legal practices by guaranteeing the following package of fourteen robust, inalienable, human rights: (1) a right to physical security; (2) a right to physical subsistence; (3) children’s rights to what is necessary for normal physical, cognitive, emotional, and behavioral development; (4) a right to an education, including a moral education; (5) a right to freedom of the press; (6) a right to freedom of thought and expression; (7) a right to freedom of association; (8) liberty rights to a sphere of personal autonomy free from legal paternalism; (9) political rights; (10) economic rights; (11) negative opportunity rights; (12) positive opportunity rights; (13) rights to social insurance; (14) privacy rights. The book explains how the main principle avoids the standard counterexamples thought to be decisive against consequentialist accounts. It compares its account with many of the most influential nonconsequentialist accounts of morality and justice in the philosophical literature.Less
This book explains the development of human rights as a process of moral improvement in ground level moral and legal practices. This leads to a consideration of the process by which moral and legal practices are improved. The book focuses on moral improvement and then shows how to apply the model of moral improvement to improvements in the law. The book reconstructs moral improvement as a process of making exceptions to status quo moral practices. It introduces a meta-level consequentialist (though not utilitarian) principle, the main principle, as a sufficient condition for an improvement in a ground-level moral practice. Because the main principle is a meta-level explanatory principle, not itself a part of any ground-level moral practices, it is an indirect consequentialist principle. The rough idea of the main principle is that it endorses a change to the status quo ground-level moral practices as a moral improvement, if, when evaluated both as a substantive practice and a practice of implementation, the change would make the overall system of social practices one that does a better job of equitably promoting life prospects (a probabilistic measure of well-being) than the status quo practices and better than any of the other relevant alternatives to the status quo. The main principle is not utilitarian, because it is sensitive to the distribution of life prospects (well-being). The book uses the main principle to explain why all societies everywhere can improve their ground-level moral and legal practices by guaranteeing the following package of fourteen robust, inalienable, human rights: (1) a right to physical security; (2) a right to physical subsistence; (3) children’s rights to what is necessary for normal physical, cognitive, emotional, and behavioral development; (4) a right to an education, including a moral education; (5) a right to freedom of the press; (6) a right to freedom of thought and expression; (7) a right to freedom of association; (8) liberty rights to a sphere of personal autonomy free from legal paternalism; (9) political rights; (10) economic rights; (11) negative opportunity rights; (12) positive opportunity rights; (13) rights to social insurance; (14) privacy rights. The book explains how the main principle avoids the standard counterexamples thought to be decisive against consequentialist accounts. It compares its account with many of the most influential nonconsequentialist accounts of morality and justice in the philosophical literature.
Robin Briggs
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780198225829
- eISBN:
- 9780191708947
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198225829.003.0004
- Subject:
- History, European Modern History
This chapter discusses the judicial process in Lorraine. Topics covered include legal procedures and structures, statistics on the pattern of persecution, and torture and its effects. The lack of ...
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This chapter discusses the judicial process in Lorraine. Topics covered include legal procedures and structures, statistics on the pattern of persecution, and torture and its effects. The lack of serious debate or differences of opinions concerning witchcraft persecution is considered. It is also argued that Lorraine legal practice in witchcraft cases is better seen as a process carried out under a set of overlapping authorities.Less
This chapter discusses the judicial process in Lorraine. Topics covered include legal procedures and structures, statistics on the pattern of persecution, and torture and its effects. The lack of serious debate or differences of opinions concerning witchcraft persecution is considered. It is also argued that Lorraine legal practice in witchcraft cases is better seen as a process carried out under a set of overlapping authorities.
Karen J. Alter
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691154749
- eISBN:
- 9781400848683
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691154749.003.0003
- Subject:
- Political Science, International Relations and Politics
This chapter identifies a significant variation in which states have consented to compulsory international judicial oversight. The reach of international courts (ICs) and international law varies, ...
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This chapter identifies a significant variation in which states have consented to compulsory international judicial oversight. The reach of international courts (ICs) and international law varies, but where there is international law that litigants can invoke in court, the circle of actors involved in defining what international law means, and what it means for governments to be rule of law actors, expands. This expansion brings with it a shift in international relations, away from state control in both the domestic and international realms. The chapter sketches the international judicial landscape today by presenting a bird's-eye overview of the contemporary international judiciary, revealing temporal, substantive, and regional trends in delegating authority to ICs. But the perspective is largely static, a snapshot in time that obscures how legal practice, international law, and international legal institutions evolve.Less
This chapter identifies a significant variation in which states have consented to compulsory international judicial oversight. The reach of international courts (ICs) and international law varies, but where there is international law that litigants can invoke in court, the circle of actors involved in defining what international law means, and what it means for governments to be rule of law actors, expands. This expansion brings with it a shift in international relations, away from state control in both the domestic and international realms. The chapter sketches the international judicial landscape today by presenting a bird's-eye overview of the contemporary international judiciary, revealing temporal, substantive, and regional trends in delegating authority to ICs. But the perspective is largely static, a snapshot in time that obscures how legal practice, international law, and international legal institutions evolve.
Richard L. Abel
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199760374
- eISBN:
- 9780199827077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199760374.003.0008
- Subject:
- Law, Legal Profession and Ethics
The detailed case studies presented in this book illustrate the need to understand what these lawyers did and why they did it. Only then can we look for commonalities across cases, develop hypotheses ...
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The detailed case studies presented in this book illustrate the need to understand what these lawyers did and why they did it. Only then can we look for commonalities across cases, develop hypotheses for quantitative testing, and suggest remedies that transcend unique circumstances. In order to expand the number of instances and see whether jurisdiction matters, this chapter refers to the seven New York lawyers described in an earlier book. It explores the similarities and differences among the behaviors of these lawyers and others who appear in the chapter introductions.Less
The detailed case studies presented in this book illustrate the need to understand what these lawyers did and why they did it. Only then can we look for commonalities across cases, develop hypotheses for quantitative testing, and suggest remedies that transcend unique circumstances. In order to expand the number of instances and see whether jurisdiction matters, this chapter refers to the seven New York lawyers described in an earlier book. It explores the similarities and differences among the behaviors of these lawyers and others who appear in the chapter introductions.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.001
- Subject:
- Psychology, Forensic Psychology
The United States has recently seen a religious resurgence. Americans are attending church in larger numbers than ever before, and mass media and popular entertainment are saturated with religious ...
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The United States has recently seen a religious resurgence. Americans are attending church in larger numbers than ever before, and mass media and popular entertainment are saturated with religious references. Importantly, religion is prominent in legal contexts as well, whether it involves the Ten Commandments in the courthouse, priests on trial for sexual abuse, jurors excused from jury service because of their religion, or judges sentencing criminal defendants to attend church. This chapter provides a thumbnail sketch of the place of religion in American life, explains why we should care about religion's role at trial, comments briefly on empirical issues in researching religion in legal contexts, and gives an overview of the remainder of the book. It also introduces a central theme in the book, namely, the normative and descriptive approaches to the issue. The normative question asks, “To what extent and in what ways should religion matter at trial?” The descriptive question asks “In what ways does religion matter at trial?”Less
The United States has recently seen a religious resurgence. Americans are attending church in larger numbers than ever before, and mass media and popular entertainment are saturated with religious references. Importantly, religion is prominent in legal contexts as well, whether it involves the Ten Commandments in the courthouse, priests on trial for sexual abuse, jurors excused from jury service because of their religion, or judges sentencing criminal defendants to attend church. This chapter provides a thumbnail sketch of the place of religion in American life, explains why we should care about religion's role at trial, comments briefly on empirical issues in researching religion in legal contexts, and gives an overview of the remainder of the book. It also introduces a central theme in the book, namely, the normative and descriptive approaches to the issue. The normative question asks, “To what extent and in what ways should religion matter at trial?” The descriptive question asks “In what ways does religion matter at trial?”
JULES L. COLEMAN
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264124
- eISBN:
- 9780191707698
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264124.003.0008
- Subject:
- Law, Philosophy of Law
This chapter defends the conventionality thesis — the claim that legal authority is made possible by a specific set of conventional social practice. It begins by considering the widely misunderstood ...
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This chapter defends the conventionality thesis — the claim that legal authority is made possible by a specific set of conventional social practice. It begins by considering the widely misunderstood relationship between the rule of recognition and the social practice of officials. It then argues that contrary to the views of many positivists, the rule of recognition purports to be, and can be, a duty-imposing rule. The chapter concludes by considering the objection that to explain the existence conditions of legal authority in terms of a rule of recognition whose existence condition depends on the behaviour of ‘officials’ is, in the end, to explain law in terms of law.Less
This chapter defends the conventionality thesis — the claim that legal authority is made possible by a specific set of conventional social practice. It begins by considering the widely misunderstood relationship between the rule of recognition and the social practice of officials. It then argues that contrary to the views of many positivists, the rule of recognition purports to be, and can be, a duty-imposing rule. The chapter concludes by considering the objection that to explain the existence conditions of legal authority in terms of a rule of recognition whose existence condition depends on the behaviour of ‘officials’ is, in the end, to explain law in terms of law.
David Lemmings
- Published in print:
- 1990
- Published Online:
- October 2011
- ISBN:
- 9780198221555
- eISBN:
- 9780191678431
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198221555.003.0006
- Subject:
- History, British and Irish Early Modern History
This chapter examines the professional characteristics and activities of the barristers in England who made the principal elements of their careers advocacy at the bars of the courts in Westminster ...
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This chapter examines the professional characteristics and activities of the barristers in England who made the principal elements of their careers advocacy at the bars of the courts in Westminster Hall and on the circuit. It analyses the provincial aspects of legal practice and outlines the alternative or supplementary careers available to barristers. This chapter also discusses the quantitative anatomy of the bar with respect to its size, professional structure and the distribution of business among advocates in the central courts.Less
This chapter examines the professional characteristics and activities of the barristers in England who made the principal elements of their careers advocacy at the bars of the courts in Westminster Hall and on the circuit. It analyses the provincial aspects of legal practice and outlines the alternative or supplementary careers available to barristers. This chapter also discusses the quantitative anatomy of the bar with respect to its size, professional structure and the distribution of business among advocates in the central courts.
Leslie Peirce
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780520228900
- eISBN:
- 9780520926974
- Item type:
- book
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520228900.001.0001
- Subject:
- History, Middle East History
This book delves into the life of a sixteenth-century Middle Eastern community, bringing to light the ways that women and men used their local law court to solve personal, family, and community ...
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This book delves into the life of a sixteenth-century Middle Eastern community, bringing to light the ways that women and men used their local law court to solve personal, family, and community problems. Examining one year of proceedings of the court of Aintab, an Anatolian city which had recently been conquered by the Ottoman sultanate, the author argues that local residents responded to new opportunities and new constraints by negotiating flexible legal practices. The local residents' actions and the different compromises they reached in court influenced how society viewed gender and also created a dialogue with the ruling regime over mutual rights and obligations. Locating its discussion of gender and legal issues in the context of the changing administrative practices and shifting power relations of the period, the book argues that it was only in local interpretation that legal rules acquired vitality and meaning.Less
This book delves into the life of a sixteenth-century Middle Eastern community, bringing to light the ways that women and men used their local law court to solve personal, family, and community problems. Examining one year of proceedings of the court of Aintab, an Anatolian city which had recently been conquered by the Ottoman sultanate, the author argues that local residents responded to new opportunities and new constraints by negotiating flexible legal practices. The local residents' actions and the different compromises they reached in court influenced how society viewed gender and also created a dialogue with the ruling regime over mutual rights and obligations. Locating its discussion of gender and legal issues in the context of the changing administrative practices and shifting power relations of the period, the book argues that it was only in local interpretation that legal rules acquired vitality and meaning.
Stephen J. Morse
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199599844
- eISBN:
- 9780191725227
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599844.003.0028
- Subject:
- Law, Medical Law
The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging (fMRI) has been accompanied by popular and scholarly commentary suggesting that ...
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The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging (fMRI) has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This chapter attempts to put such claims in perspective and considers how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice, and theory, but such contributions will be few and modest for the foreseeable future. The first part of the chapter describes the law's implicit folk psychological view of human behaviour and why any other model is not possible at present. It then turns to dangerous distractions that have bedevilled clear thinking about the relation between scientific explanations of human behaviour and law. Next, it considers how to translate the mechanistic findings of neuroscience into the folk psychological concepts the law employs. Finally, illustrative case studies of the legal relevance of neuroscience studies are presented. The discussion and all the examples focus on criminal law and on competence for the sake of simplicity and coherence, but the arguments are almost all generalizable to other legal contexts.Less
The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging (fMRI) has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This chapter attempts to put such claims in perspective and considers how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice, and theory, but such contributions will be few and modest for the foreseeable future. The first part of the chapter describes the law's implicit folk psychological view of human behaviour and why any other model is not possible at present. It then turns to dangerous distractions that have bedevilled clear thinking about the relation between scientific explanations of human behaviour and law. Next, it considers how to translate the mechanistic findings of neuroscience into the folk psychological concepts the law employs. Finally, illustrative case studies of the legal relevance of neuroscience studies are presented. The discussion and all the examples focus on criminal law and on competence for the sake of simplicity and coherence, but the arguments are almost all generalizable to other legal contexts.
Nicos Stavropoulos
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198258995
- eISBN:
- 9780191681899
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258995.003.0006
- Subject:
- Law, Philosophy of Law
This chapter discusses several problems connected with the claim that legal practices determine the content of legal concepts. It examines the well-known arguments of Stanley Fish, and shows how he ...
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This chapter discusses several problems connected with the claim that legal practices determine the content of legal concepts. It examines the well-known arguments of Stanley Fish, and shows how he oscillates between a convernionalist conception of practice and an objective conception of practice. Fish's views supply a good opportunity for sharpening the objective conception of practices, since he defends a sophisticated pragmatism that purports to retain some sceptical character, while avoiding the pitfalls of straightforward conventionalist conceptions. The chapter also deals with the objection that failure to respect conventional or legislators' subjective understanding of the concepts used in the law will result in substituting law for morality, and that only good law will be identified, so that the distinction between law and ideal law will collapse. Several different examples of legal interpretation are discussed in an attempt to show that no bias towards good law is implied by applying concepts in an objective way. Finally, the chapter addresses a variant of misunderstanding objectivism, under which it is thought to make for conservatism, and examines Michael Moore's arguments regarding discourse autonomy.Less
This chapter discusses several problems connected with the claim that legal practices determine the content of legal concepts. It examines the well-known arguments of Stanley Fish, and shows how he oscillates between a convernionalist conception of practice and an objective conception of practice. Fish's views supply a good opportunity for sharpening the objective conception of practices, since he defends a sophisticated pragmatism that purports to retain some sceptical character, while avoiding the pitfalls of straightforward conventionalist conceptions. The chapter also deals with the objection that failure to respect conventional or legislators' subjective understanding of the concepts used in the law will result in substituting law for morality, and that only good law will be identified, so that the distinction between law and ideal law will collapse. Several different examples of legal interpretation are discussed in an attempt to show that no bias towards good law is implied by applying concepts in an objective way. Finally, the chapter addresses a variant of misunderstanding objectivism, under which it is thought to make for conservatism, and examines Michael Moore's arguments regarding discourse autonomy.
Richard Nobles and David Schiff
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198298939
- eISBN:
- 9780191685552
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298939.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book explores a paradox. In a society in which justice is uncertain and contested, how can we talk meaningfully about miscarriage of justice? The book examines the structural conditions that ...
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This book explores a paradox. In a society in which justice is uncertain and contested, how can we talk meaningfully about miscarriage of justice? The book examines the structural conditions that inevitably produce high-profile miscarriages of justice. The thesis of the book is that there is a tension between the rhetoric of justice as understood outside of law, particularly in the media, and legal practice. Despite evidence that miscarriages of justice must be a normal and expected consequence of imperfect arrangements for investigations, prosecutions, and trials, they are ordinarily understood as exceptional and unacceptable events. Periodically, however, miscarriages are seen not as exceptional, but widespread and normal. At such moments, the legitimacy of the criminal justice process is called into question in the media. These moments are constructed in the media as a crisis of public confidence in criminal justice. With the mass media's vivid interest in crime and punishment and their relentless reconstruction of relevant facts, the courts fact-finding monopoly is fundamentally contested. While this happens in all phases of a criminal process, the contest becomes particularly dramatic when after a criminal conviction the mass media continue their investigation and discover, according to their criteria of truth, a miscarriage of justice. But there is no set of common criteria that would allow for the design of rational procedures to end the contest. There is no forum, no procedure, and no set of criteria that would make possible a common search for truth.Less
This book explores a paradox. In a society in which justice is uncertain and contested, how can we talk meaningfully about miscarriage of justice? The book examines the structural conditions that inevitably produce high-profile miscarriages of justice. The thesis of the book is that there is a tension between the rhetoric of justice as understood outside of law, particularly in the media, and legal practice. Despite evidence that miscarriages of justice must be a normal and expected consequence of imperfect arrangements for investigations, prosecutions, and trials, they are ordinarily understood as exceptional and unacceptable events. Periodically, however, miscarriages are seen not as exceptional, but widespread and normal. At such moments, the legitimacy of the criminal justice process is called into question in the media. These moments are constructed in the media as a crisis of public confidence in criminal justice. With the mass media's vivid interest in crime and punishment and their relentless reconstruction of relevant facts, the courts fact-finding monopoly is fundamentally contested. While this happens in all phases of a criminal process, the contest becomes particularly dramatic when after a criminal conviction the mass media continue their investigation and discover, according to their criteria of truth, a miscarriage of justice. But there is no set of common criteria that would allow for the design of rational procedures to end the contest. There is no forum, no procedure, and no set of criteria that would make possible a common search for truth.
J. H. BAKER
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199245185
- eISBN:
- 9780191705175
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199245185.003.0001
- Subject:
- Law, Legal History
This chapter focuses on the two bodies of law — case-law and statute law. It proposes the complexities posed to legal historians by the co-existence of these two bodies of law, operating on different ...
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This chapter focuses on the two bodies of law — case-law and statute law. It proposes the complexities posed to legal historians by the co-existence of these two bodies of law, operating on different planes and sometimes in discord, and yet both within the understanding and contemplation of lawyers. It also makes a clear differentiation the two laws by reconstructing events during the medieval and early-modern periods. Moreover, it evaluates several internal conflicts of law, extra-legal practices, and non-contentious forms of litigation.Less
This chapter focuses on the two bodies of law — case-law and statute law. It proposes the complexities posed to legal historians by the co-existence of these two bodies of law, operating on different planes and sometimes in discord, and yet both within the understanding and contemplation of lawyers. It also makes a clear differentiation the two laws by reconstructing events during the medieval and early-modern periods. Moreover, it evaluates several internal conflicts of law, extra-legal practices, and non-contentious forms of litigation.
John B Nann and Morris L Cohen
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780300118537
- eISBN:
- 9780300235685
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300118537.001.0001
- Subject:
- Law, Legal History
The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even ...
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The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even centuries old, and historians studying political or cultural history often encounter legal issues that affect their main subjects. Both groups need to understand the laws and legal practices of past eras. Law plays an important part in the political and social history of the United States. As such, researchers interested in almost every aspect of American life will have occasion to use legal materials. The book provides an overview of legal history research, describing the U.S. legal system and legal authority. It is essential reference is intended for the many nonspecialists who need to enter this arcane and often tricky area of research.Less
The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even centuries old, and historians studying political or cultural history often encounter legal issues that affect their main subjects. Both groups need to understand the laws and legal practices of past eras. Law plays an important part in the political and social history of the United States. As such, researchers interested in almost every aspect of American life will have occasion to use legal materials. The book provides an overview of legal history research, describing the U.S. legal system and legal authority. It is essential reference is intended for the many nonspecialists who need to enter this arcane and often tricky area of research.
Jenny Hale Pulsipher
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9781479850129
- eISBN:
- 9781479838394
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479850129.003.0003
- Subject:
- Law, Philosophy of Law
As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept ...
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As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept at switching opportunistically between them in his career as a speculator and (untrustworthy) intermediary. Wompas emerged out of a world where Natives used English law to defend their land rights, while colonists deployed Indian law to deny those rights. He outstripped his contemporaries in his skill at drawing on his Native identity to obtain land, then manipulating English law to sell and record this land, and later switching to Indian norms to evade obstacles put in his way by colonial authorities. By drawing on both Native and English legal practices, Wompas aimed to make land transactions intelligible to both sides, thus increasing the chances that sales would be accepted.Less
As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept at switching opportunistically between them in his career as a speculator and (untrustworthy) intermediary. Wompas emerged out of a world where Natives used English law to defend their land rights, while colonists deployed Indian law to deny those rights. He outstripped his contemporaries in his skill at drawing on his Native identity to obtain land, then manipulating English law to sell and record this land, and later switching to Indian norms to evade obstacles put in his way by colonial authorities. By drawing on both Native and English legal practices, Wompas aimed to make land transactions intelligible to both sides, thus increasing the chances that sales would be accepted.
Angela K. McGowan, Ross C. Brownson, Lynne S. Wilcox, and George A. Mensah
- Published in print:
- 2007
- Published Online:
- September 2009
- ISBN:
- 9780195301489
- eISBN:
- 9780199863822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195301489.003.0017
- Subject:
- Public Health and Epidemiology, Public Health, Epidemiology
This chapter discusses the legal and policy interventions for preventing and controlling chronic disease. It describes legal authorities and controversies, then covers practice considerations in ...
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This chapter discusses the legal and policy interventions for preventing and controlling chronic disease. It describes legal authorities and controversies, then covers practice considerations in relation to three examples: cardiovascular health, diabetes, and physical activity. The chapter concludes by briefly discussing several emerging issues that should be considered as this topic continues to evolve.Less
This chapter discusses the legal and policy interventions for preventing and controlling chronic disease. It describes legal authorities and controversies, then covers practice considerations in relation to three examples: cardiovascular health, diabetes, and physical activity. The chapter concludes by briefly discussing several emerging issues that should be considered as this topic continues to evolve.
Charles Sampford and Christine Parker
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198259459
- eISBN:
- 9780191681950
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198259459.003.0002
- Subject:
- Law, Legal Profession and Ethics
This chapter presents a philosophical discussion of a multi-faceted approach to legal ethics. It raises a number of basic questions about the place of legal ethics in influencing the behaviour of ...
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This chapter presents a philosophical discussion of a multi-faceted approach to legal ethics. It raises a number of basic questions about the place of legal ethics in influencing the behaviour of lawyers and law firms, suggests some answers, proposes a framework by which we may seek answers, and identifies the core of potentially conflicting answers. The following questions are addressed: Why is there so much interest in, and apparent commitment to, legal, professional, and business ethics during the 1990s? Is it good tactics, good business, or is it something more? What form should legal ethics take? Should it be an enforceable code, an aspirational code, the positive morality of lawyers, or a form of critical morality? What role should legal ethics play? Should legal ethics be expected to operate independently or must it operate in conjunction with other measures to improve the conduct of lawyers, including legal regulation and institutional design? What values might legal practice serve?Less
This chapter presents a philosophical discussion of a multi-faceted approach to legal ethics. It raises a number of basic questions about the place of legal ethics in influencing the behaviour of lawyers and law firms, suggests some answers, proposes a framework by which we may seek answers, and identifies the core of potentially conflicting answers. The following questions are addressed: Why is there so much interest in, and apparent commitment to, legal, professional, and business ethics during the 1990s? Is it good tactics, good business, or is it something more? What form should legal ethics take? Should it be an enforceable code, an aspirational code, the positive morality of lawyers, or a form of critical morality? What role should legal ethics play? Should legal ethics be expected to operate independently or must it operate in conjunction with other measures to improve the conduct of lawyers, including legal regulation and institutional design? What values might legal practice serve?
Caroline Humfress
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780748668175
- eISBN:
- 9780748684328
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748668175.003.0005
- Subject:
- Law, Legal History
Official (Graeco-) Roman sources envisaged a world ruled by the universal law of Rome and its emperors. This chapter analyses Roman legal universalism “on the ground”, from the perspective of ...
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Official (Graeco-) Roman sources envisaged a world ruled by the universal law of Rome and its emperors. This chapter analyses Roman legal universalism “on the ground”, from the perspective of concrete legal practice. Using a wide range of evidence from the High to Late empires – legal, papyrological, epigraphic, literary, and Patristic – it argues that “legal anthropology” approaches are an essential corrective to the legal-centralist standpoint that is dominant in most studies of Roman law-in-action. In particular, if we set to one side a (nineteenth- and early twentieth-century) state-based theory of law – in which official law codes, formal legal institutions and the state are seen to stand at the core of all social order – we can begin to re-think the existing dominant paradigm of an Imperial “monopoly” over Postclassical Roman law and legal practice.Less
Official (Graeco-) Roman sources envisaged a world ruled by the universal law of Rome and its emperors. This chapter analyses Roman legal universalism “on the ground”, from the perspective of concrete legal practice. Using a wide range of evidence from the High to Late empires – legal, papyrological, epigraphic, literary, and Patristic – it argues that “legal anthropology” approaches are an essential corrective to the legal-centralist standpoint that is dominant in most studies of Roman law-in-action. In particular, if we set to one side a (nineteenth- and early twentieth-century) state-based theory of law – in which official law codes, formal legal institutions and the state are seen to stand at the core of all social order – we can begin to re-think the existing dominant paradigm of an Imperial “monopoly” over Postclassical Roman law and legal practice.
