scholarly journals Te ao Māori in a "Sympathetic" Legal Regime: the Use of Māori Concepts in Legislation

2009 ◽  
Vol 40 (2) ◽  
pp. 531 ◽  
Author(s):  
Arnu Turvey
Keyword(s):  
Decision Making ◽  
Cultural Identity ◽  
Common Law ◽  
Legal Regime ◽  
Treaty Of Waitangi ◽  
Decision Making Processes ◽  
Practical Effect ◽  
The Common ◽  
The Government ◽  
Positive Step

The incorporation of Māori concepts into legislation has been one of several methods the government has employed to acknowledge and promote Māori cultural identity and give practical effect to the Treaty of Waitangi within its legislative frameworks.  While legal recognition of Māori concepts may have appeared as a positive step towards the creation of a mutually beneficial level of bicultural discourse in the government's management frameworks, in practice they have been the source of a new set of challenges. By transplanting Māori concepts directly into legislation, Māori ideas must become operational parts of Western regimes; concepts which are to be recognised and given effect to within the decision-making processes of bodies charged with the administration of particular legislation as well as the courts. Drawing on Commons' observations about the nature of artificial selection - the process by which the meaning of ideas and language is consciously or subconsciously manipulated by the group in power in order to advance its own interests, it becomes evident that, in the context of the common law legal system, Māori concepts have become detached from their original purpose and meaning.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

scholarly journals The Role of Public Participation in Governance towards Achieving Sustainable Development. Part 1

2021 ◽  
Vol 8 (4) ◽  
pp. 395-404
Author(s):  
Maurice S. Nyarangaa ◽  
Chen Hao ◽  
Duncan O. Hongo
Keyword(s):  
Decision Making ◽  
Sustainable Development ◽  
Public Participation ◽  
Good Governance ◽  
Policy Formulation ◽  
Government Officials ◽  
Political Class ◽  
The Public ◽  
Decision Making Processes ◽  
The Government

Public participation aimed at improving the effectiveness of governance by involving citizens in governance policy formulation and decision-making processes. It was designed to promote transparency, accountability and effectiveness of any modern government. Although Kenya has legally adopted public participation in day-to-day government activities, challenges still cripple its effectiveness as documented by several scholars. Instead of reducing conflicts between the government and the public, it has heightened witnessing so many petitions of government missing on priorities in terms of development and government policies. Results show that participation weakly relates with governance hence frictions sustainable development. Theoretically, public participation influences governance efficiency and development, directly and indirectly, thus sustainable development policy and implementation depends on Public participation and good governance. However, an effective public participation in governance is has been fractioned by the government. Instead of being a promoter/sponsor of public participation, the government of Kenya has failed to put structures that would spur participation of citizens in policy making and other days to activities. This has brought about wrong priority setting and misappropriation of public resources; The government officials and political class interference ultimately limit public opinion and input effects on decision-making and policy formulation, which might be an inner factor determining the failure of public participation in Kenya. The study suggests the need for strengthening public participation by establishing an independent institution to preside over public participation processes.

scholarly journals The European Parliament and the Layered Politicization of the External Dimension of the Common Fisheries Policy

2019 ◽  
Vol 7 (3) ◽  
pp. 237-247 ◽  
Author(s):  
Hubert Zimmermann
Keyword(s):  
Decision Making ◽  
Policy Process ◽  
Empirical Test ◽  
European Parliament ◽  
Veto Players ◽  
Political Dynamics ◽  
Fisheries Policy ◽  
Decision Making Processes ◽  
The Common ◽  
Policy Fields

When the Lisbon Treaty entered into effect, the European Parliament became a core player in the decision-making processes of the EU’s Common Fisheries Policy (CFP) and its external dimensions. This new role suggested a shift towards stronger politicization in what had previously been a rather technocratic policy field. However, the CFP is not yet marked by a clear and consistent level of politicization. I use the concept of ‘layered politicization’ to explain this pattern. Although it is not comparable to the degree of political controversy shaping fully politicized policy fields, some similar political dynamics can be observed. Among them is a transformation in the policy process due to higher ratification requirements; a higher likelihood of political deadlock resulting from an increasing number of veto-players; and a strengthening of the contested legitimacy of EU decision-making. An empirical test of these theoretical propositions is provided here in the form of two case studies; the negotiation of Fisheries Partnership Agreements with Morocco and Mauritania.

Knowing Habeas Corpus When You See It

2018 ◽  
pp. 9-11
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Habeas Corpus ◽  
The Supreme Court ◽  
The Common ◽  
The Government ◽  
Enemy Combatant

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law

Climate Law ◽  
2020 ◽  
Vol 10 (2) ◽  
pp. 151-196
Author(s):  
Rolf H. Weber ◽  
Andreas Hösli
Keyword(s):  
Climate Change ◽  
Decision Making ◽  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Social Impacts ◽  
Securities Law ◽  
The Common

Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted to climate-change-related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors’ duties: are directors expected to consider climate-change-related risks in their decision making? If yes, to what extent? The issue has received considerable attention from commentators in relation to common law jurisdictions, but so far it has been less discussed in relation to civil law countries. This article attempts to contribute to filling this gap by presenting a comparative analysis, with a main focus on claims based on corporate and securities law.

How Judges Use Weapons of Influence: The Social Psychology of Courts

2013 ◽  
Vol 46 (1) ◽  
pp. 7-24
Author(s):  
Guy Davidov ◽  
Maayan Davidov
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Case Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Public ◽  
The Social ◽  
The Face ◽  
Decision Making Processes ◽  
The Government

Research on compliance has shown that people can be induced to comply with various requests by using techniques that capitalise on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques – including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’ – and provide examples from Israeli case law of the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

scholarly journals DO PRECEDENTS CREATE RULES?

Legal Theory ◽  
2005 ◽  
Vol 11 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Grant Lamond
Keyword(s):  
Decision Making ◽  
Basic Assumption ◽  
Common Law ◽  
Rule Based ◽  
Distinctive Features ◽  
Conventional View ◽  
Adequate Theory ◽  
The Common

The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules—they are better understood as a special type of reason.

Rights and Interests — A Troublesome Distinction Reviewed in the Context of Labour Arbitration and Industrial Action

1980 ◽  
Vol 15 (4) ◽  
pp. 496-529
Author(s):  
Frances Raday
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Large Area ◽  
Labour Law ◽  
Previous Issue ◽  
Industrial Action ◽  
Decision Making Processes ◽  
The Common ◽  
The Difference ◽  
Rule Making

It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

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