86 research outputs found
To whom does the law speak? Canvassing a neglected picture of lawâs interpretive field
Among the most common strategies underlying the so-called indeterminacy thesis is the following two-step argument: (1) that law is an interpretive practice, and that evidently legal actors more generally hold different (and competing) theories of meaning, which lead to disagreements as to what the law says (that is, as to what the law is); (2) and that, as there is no way to establish the prevalence of one particular theory of meaning over the other, indeterminacy is pervasive in law. In this paper I offer some reflections to resist this trend. In particular I claim that a proper understanding of law as an authoritative communicative enterprise sheds new light on the relation between the functioning of the law and our theories of interpretation, leading to what can be considered a neglected conclusion: the centrality of the linguistic criterion of meaning in our juridical interpretive practices. In the first part of the chapter I discuss speech-act theory in the study of law, assessing its relevance between alternative options. Then I tackle the âto whom does the law speak?â question, highlighting the centrality of lay-people for our juridical practices. Lastly, I examine the consequences of this neglected fact for our interpretive theories
Gender injustice in compensating injury to autonomy in English and Singaporean negligence law
The extent to which English law remedies injury to autonomy (ITA) as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent (Keren-Paz in Med Law Rev, 2018) but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing womenâs interest in reproductive autonomy. I then show by reference to English remedies lawâs first principles how imposed motherhood casesâRees v Darlington and its predecessor McFarlane v Tayside Health Boardâresult in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; menâs reproductive autonomy is protected to a greater extent than womenâs; womenâs reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimantâs genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACBâs analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the fatherâs interest in having genetic affinity with the baby over a womanâs interest in not having motherhood imposed upon her
Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon
How do the practices listed in the subtitle manage to forestall negative reactive attitudes, such as resentment and guilt, and render them no longer appropriate? I argue that these ârevisionary practicesâ redraw the selfâs temporal boundary to exclude the wrongful act, thus releasing the wrongdoer from continuing to bear responsibility for that act
A Concept of Dignity
In this lecture, presented at a German-Israeli conference on Dignity and the Criminal Law held in Jerusalem in January 2009, I track the idea of human dignity to its two main sources, the Old Testament notion of Imago Dei and Kantâs doctrine of the noumenal self. I then draw some implications that the provenance of dignity, so understood, has on the use of this concept in a number of contemporary debates
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