The Logic of Legal Reasoning in Religious and Non-Religious Cultures: The Case of Islamic Law and the Common Law

It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service. It may well be argued that law is, in the final analysis, the product of the premises and methods from and through which it is derived. Two such legal systems which display a vast difference in their overall structure and function are Islamic law and the common law. This paper proposes to shed some light on the logic of legal reasoning in both orders as well as to analyze the reasons and background which give rise to differences and similarities in their methods of reasoning. This will be done with the intent of bringing out some of the major factors which operate on the level of the judicial process and which contribute to the creation of differences in legal orders. The focal comparison in such a study must be the relationship between the logic of the law and the amount of emphasis given to social change in secular and religious cultures

The Real Rules of Search Interpretations

The Supreme Court tells us that a Fourth Amendment “search” is a matter of “reasonable expectations of privacy.” Scholars meanwhile debate “search” on the axes of value, doctrine, institutionalism, interpretation, and judicial politics. Yet neither prevailing judicial doctrine nor normative academic discourse has had much impact on the Court’s actual “search” interpretations. This article suggests that this static between “paper” rules and “real” rules (and, more generally, normative prescriptions and judicial decisionmaking) is a function of a deep constraint on the judiciary’s capacity to form “search” doctrine in free accordance with evolving juridical and policy norms. This constraint is one that I call the “atomic code.” The atomic code has three properties. First, justices evaluate each “search” issue without regard for coherence across the spectrum of “search” issues. In effect, the “search doctrine” is simply an “aggregation of search ‘atoms.’” A second property of the atomic code is that justices attribute content to new search atoms through analogies to old search atoms. While initially every search atom is dormant, over time a justice, either informally or through adjudication, will gradually attribute content—“search” or “non-search”—to her atoms by drawing from the content of analogous search atoms. By this account, the holding in Olmstead v. United States reflects nothing grander than the endorsement by five justices of an analogy between wiretapping and visual surveillance from a public vantage point. The third property of the atomic code is that a justice will not reassess an atom’s content once she has made her initial attribution. One might think of this as stare decisis writ small: a justice (but not necessarily the Court) will decide like cases alike. And so the overturning of “search” precedent is not the result of a majority’s new attribution of content to their search atoms, but, more accurately, a new majority of initial attributions. I should emphasize at the outset that the atomic code is not simply the result of a vague doctrinal test, suboptimal or inaccessible empirical data on “privacy expectations,” or judicial politics. Rather, the code’s roots run deeper. It is in large part attributable to two factors. One is the concreteness of the term “search.” The other is the justices’ preference for a calibrated retroactivity of criminal procedure rules. These two factors, more than any others, have caused justices to treat the “search” doctrine as atomistic, to attribute content through analogical reasoning, and to fix content upon attribution

Regularizing the Trust Protector

Increasingly, settlors of trusts in on-shore jurisdictions are making use of trust protectors. Protectors serve a variety of functions but generally speaking they are appointed to provide additional security for settlors’ expectations that trusts will be administered in accordance with their intentions. Given the potential breadth and variety of functions performed and powers wielded by protectors, their use generates important and profound theoretical issues. Taking its cues from recent efforts to regularize trust protection, this essay addresses questions concerning the extension of fiduciary duties to trust protectors. Amongst other things, it questions the tenability of proposals for broad extension of fiduciary status to protectors and advocates a structured fact-based approach to fiduciary characterization of trust protection mandates

05431 Abstracts Collection -- Deduction and Applications

From 23.10.05 to 28.10.05, the Dagstuhl Seminar 05431 ``Deduction and Applications\u27\u27 was held in the International Conference and Research Center (IBFI), Schloss Dagstuhl. During the seminar, several participants presented their current research, and ongoing work and open problems were discussed. Abstracts of the presentations given during the seminar as well as abstracts of seminar results and ideas are put together in this paper. The first section describes the seminar topics and goals in general. Links to extended abstracts or full papers are provided, if available

On relationships between the logic of law, legal positivism and semiotics of law

The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questions of the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic). Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common points or the differences between these paradigms of legal research. One of the theses of the present work is that, at the comparative methodological level, the limits of legal semiotics and its object of inquiry could only be defined in relation to legal posi tivism and logical studies of law. This paper also argues for a proper position for legal semiotics in between legal positivism and legal logic. The differences between legal positivism, legal logic and legal semiotics are best captured in the issue of referent

Moral norms and the forgotten virtue of Epikeia in the pastoral care of the divorced and remarried

The virtue of epikeia is relevant for many issues that arise in contemporary society, including pastoral concerns in our parish communities, among which, a particularly diffcult one is the pastoral care of the divorced and remarried. is article will include two parts. First, I will focus on how the understanding of epikeia developed historically in order to present its various nuances systematically. I will clarify the different nuances of the understanding of this virtue in three key authors representative of the tradition. Second, I will raise a number of questions for the further examination of the issue of the pastoral care of the divorced and remarried.peer-reviewe