LEGAL SCHOLARSHIP AS A SOURCE OF LAW SPRINGERBRIEFS IN LAW

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Legal Scholarship As A Source Of Law

Author : Fábio P. Shecaira
ISBN : 9783319004280
Genre : Philosophy
File Size : 88.27 MB
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This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart’s jurisprudence. Indeed, the book’s analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship – or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal – can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.​
Category: Philosophy

Seaports In International Law

Author : Marco Casagrande
ISBN : 9783319603964
Genre : Law
File Size : 75.80 MB
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This is the first book to offer a comprehensive overview of modern seaports from a legal perspective. Further, it provides a basic toolkit for establishing a legal doctrine of seaports, the instruments of said toolkit being the very few legal norms specifically targeting seaports, which are examined as such rather than through the lens of other, more established disciplines, such as the law of the sea or transportation law. It is a first, necessary step toward giving seaports the status they rightfully deserve in legal studies. Despite centuries of international law studies and decades of EU law evolution, seaports have remained stuck in limbo. From a law of the sea perspective, seaports belong to the land, an approach that is often clearly reflected in national maritime legislation. The other branches of international law do not focus on seaports, since they are considered to belong to the sea. The port communities, for their part, have availed themselves of the “port specificity” concept. In recent decades, containerization has transformed ports into key hubs of the globalized economy, but also into vital checkpoints of the War on Terror, due to the security risks posed by the millions of sealed containers circulating worldwide. Moreover, tragic maritime incidents have shown that seaports are the only reliable sentinels of the seas, being the only places where the systematic inspection of ships is feasible. This has led to the adoption of specific international and EU rules. Those rules, however, remain fragmented, highly specialized and technical; as such, they are unsuitable for creating an organic legal seaport regime: this objective can only be achieved with a significant contribution from legal doctrine.
Category: Law

Ethics Dumping

Author : Doris Schroeder
ISBN : 9783319647319
Genre : Philosophy
File Size : 74.50 MB
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This book is published under a CC BY 4.0 license. This book provides original, up-to-date case studies of “ethics dumping” that were largely facilitated by loopholes in the ethics governance of low and middle-income countries. It is instructive even to experienced researchers since it provides a voice to vulnerable populations from the fore mentioned countries. Ensuring the ethical conduct of North-South collaborations in research is a process fraught with difficulties. The background conditions under which such collaborations take place include extreme differentials in available income and power, as well as a past history of colonialism, while differences in culture can add a new layer of complications. In this context, up-to-date case studies of unethical conduct are essential for research ethics training.
Category: Philosophy

Environmental And Energy Law

Author : Karen Makuch
ISBN : 9781118257364
Genre : Technology & Engineering
File Size : 23.79 MB
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Despite bringing prosperity, industrialisation generally leads to increasing levels of pollution which has a detrimental impact on the environment. In response, legislation which seeks to control or prevent such impact has become common. Similarly, climate change and energy security have become major drivers for the regulatory regimes that have emerged in the energy field. Given the global or regional scope of many environmental problems, international cooperation is often necessary to ensure such legislation is effective. The EU and the UK have contributed to the development of the environmental and energy law regimes currently in force, spanning across international, transnational and national levels. At the same time, practical responses to environmental and energy problems have largely been the focus of engineers, scientists and other technical experts. Environmental & Energy Law attempts to bridge the knowledge gap between legal developments designed to achieve environmental and/or energy-related objectives and the practical, scientific and technical considerations applicable to the same environmental problems. In particular, it attempts to convey a broad range of topical issues in environmental and energy law, from climate and energy regulation, technology innovation and transfer, to pollution control, environmental governance and enforcement. In addition the book outlines key sector specific legal regimes (including water, waste and air quality management), focusing on issues or topics that are particularly relevant to both environmental and energy lawyers, and engineering, science and technology-oriented professionals and students. In this vein, the book guides the reader on some basic practical applications of the law within scientific, engineering and other practical settings. The book will be useful to all those working or studying in the environmental or energy arena, including law students, legal professionals, engineering and science students and professionals. By adopting a multi-disciplinary approach to environmental and energy law, the book embraces all readerships and helps to address the often thorny problem of communication between scientists, engineers, lawyers and policy-makers.
Category: Technology & Engineering

Police Pursuit Driving

Author : Geoffrey P. Alpert
ISBN : 9781493907120
Genre : Social Science
File Size : 23.8 MB
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Police pursuits, often receiving a lot of media attention, have become a topic of concern and priority for both law enforcement and the communities they serve. They often come with high risks for the well-being of community members and for both the police officers involved in the chase as well as for the fleeing suspects. In this brief, we summarize what is known about police pursuits, from both legal decisions and criminological research. We then discuss the impact of this research on police pursuit policy, court decisions, and media reports. We offer suggestions about the need for more development and use of research, and the challenges for research to be integrated into police policies, training, supervision and accountability systems.
Category: Social Science

Implementation Of Eu Readmission Agreements

Author : Sergio Carrera
ISBN : 9783319425054
Genre : Law
File Size : 26.74 MB
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By examining the implementation dynamics of EU Readmission Agreements (EURAs), this book addresses the practical reasons why irregular immigrants cannot be expelled. EURAs are one of the vital legal instruments framing EU external migration law with regard to the expulsion of irregular immigrants, yet their implementation has met with various obstacles. Above all, the process of determining an individual’s legal identity has proven to be one of the most controversial aspects in the implementation of EURAs. The analysis shows that the process of identifying who is whose national in the context of readmission creates two existential dilemmas: first from the perspective of the sovereignty of third countries of origin and the legal standards laid out in international instruments as regards states’ powers in determining nationality, and second regarding the agency of the individual as a holder of fundamental human rights. How do the EURAs deal with or aim at alleviating these identity determination dilemmas? The book provides a comparative analysis of the administrative procedures and rules envisaged by EURAs aimed at proving or presuming the nationality of the persons to be readmitted to their country of origin. It focuses on the ways in which nationality is to be determined or presumed in the scope of the 2010 EURA with Pakistan, and compares it with those foreseen in the EURAs with Armenia, Azerbaijan, Cape Verde, Georgia, and Turkey. As such, the book provides a unique and up-to-date study of EURAs and their implementation challenges in the broader context of EU external migration law and policy.
Category: Law

Relational Autonomy And Family Law

Author : Jonathan Herring
ISBN : 9783319049878
Genre : Law
File Size : 31.52 MB
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This book explores the importance of autonomy in family law. It argues that traditional understandings of autonomy are inappropriate in the family law context and instead recommends the use of relational autonomy. The book starts by explaining how autonomy has historically been understood, before exploring the problems with its use in family law. It then sets out the model of relational autonomy which, it will be argued, is more appropriate in this context. Finally, some examples of practical application are presented. The issues raised and theoretical discussion is relevant to any jurisdiction.
Category: Law

The Sources Of International Law

Author : Hugh Thirlway
ISBN : 9780199685394
Genre : Law
File Size : 66.79 MB
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The question of what is, and what is not, part of international law is of course fundamental. Traditionally, treaties between states and custom (state practice) have been seen as the primary means by which international law is created. These two sources, along with the "general principles oflaw", are specified in the Statute of the International Court of Justice (Article 38), and this text has long been treated as generally authoritative. However, whether this is still an adequate definition of the sources of international law, and how they may operate in modern international society,has been questioned in significant ways. Taking Article 38 ICJ Statute as starting-point, this book provides a careful assessment of all the recognised, or asserted, sources of international law. Among the issues considered are: the impact of ethical principles on the creation of international law; the existence of peremptory norms (those of jus cogens), and whether they come into being through the same sources as other norms; the place of these, and of norms involving rights andobligations erga omnes, in the operation of international legal relationships; the definition and role of "general principles of law"; whether any of international law's sub-disciplines involve the application of additional sources; and the continuously evolving relationship between treaty-basedlaw and customary international law. Re-examining the traditional model, the work takes account of the increasing role of international jurisprudence, and looks at international organisations and non-state actors as potential new sources of international law. The book provides a perfect introduction to the law of sources, as well asinnovative perspectives on new developments, making it essential reading for anyone studying or working in any field of international law.
Category: Law

Malaysian Legal System

Author : Sharifah Suhana Ahmad
ISBN : 9679627977
Genre : Common law
File Size : 80.24 MB
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Category: Common law

Fundamentals Of Space Law And Policy

Author : Fabio Tronchetti
ISBN : 9781461478706
Genre : Law
File Size : 86.80 MB
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Presents and addresses key space law and policy issues for the benefit of wider informed audiences that wish to acquaint themselves with the fundamentals of the space law field. This brief analyzes in a concise manner the combined influence of space law and policy on international space activities. Read in conjunction with the other books in the Springer ‘Space Development’ series, it supports a broader understanding of the business, economics, engineering, legal, and procedural aspects of space activities. This book will also give the casual reader as well as experts in the field insight on present and future space law and policy trends, challenges and opportunities.
Category: Law