Decision 1/cp.17 limits the choice of legal form of a new climate agreement to three options: a protocol, another legal instrument or an agreed outcome with legal force under the Climate Convention. This commentary provides seven reasons for the conclusion that a protocol is the only viable legal option to serve the object and purpose of the convention. The reasons include, inter alia, the exclusion of non-binding, soft law under a ‘result based regime’, multilateralism, a (...) 5 year timeline which indicates a ratification process and the agreements purpose of raising the level of ambition. (shrink)

Does, or should, social uprising lead to new legal form? Ukraine’s current situation following the Revolution of Dignity in 2013–2014, with continuing violent conflict in Donbas and Crimea, suggests that not only is it unclear how a ‘new’ form is assessed, but existing transitional policies and frameworks are unlikely to be clearly implemented and enforced. An alternative analysis of transformation is necessary to address the conflicting aftermath of uprising within a particular historical and cultural context. The transformation (...) that is happening in Ukraine is a continuum that is intellectual and psychological as much as reforming judicial systems and governance. Thinking transformation differently opens onto narratives, complexity of causes and a plurality of ideas of future, resolutions and justice. Such a shift in thought and analysis, informed by narratives and grounded research, is necessary in order to try to understand the current pursuit of justice in Ukraine. (shrink)

The four theses of this paper are: that an appropriate organizational form is used to design, define, and organize a functional unit of a legal system, that the functional units of a legal system, contrary to the emphasis in Hart and Kelsen, consist of far more than rules, and include institutions, interpretive and other methodologies, sanctions and remedies, and more, that frontal and systematic study of the forms of these units is a major avenue for advancing understanding (...) of them as duly organized wholes, and, that such study reveals that much credit is due these forms, along with complementary material or other components of the units, for values realized through law. (shrink)

This essay argues for a conception of law as a normative practice, a conception which departs from traditional, particularly positivist, conceptions. It is argued that Dyzenhaus's book (Dyzenhaus 1991), with its fascinating case study of unjust judicial decisions in South Africa, makes a compelling argument for such a conception. However, the essay takes issue with Dyzenhaus for romanticising the liberal tradition, and inflating the power of law and legal theory. Nonetheless, the essay agrees that positivist accounts tend to downplay (...) the emancipatory promise of law, and ends with some remarks about promise. (shrink)

This article examines the different approaches to the relation between law, state and economy in the works of Hans Kelsen, Carl Schmitt and Evgeny Pashukanis. It begins with Kelsen’s depiction of law as a dynamic and ‘self-regulating’ system of norms, founded on his rejection of ‘dualist’ separations of state and law, before turning to Schmitt and Pashukanis’s respective critiques. For all their differences, both agree Kelsen ignores the historical basis of the law – for Schmitt, the sovereign power of ‘the (...) political’, for Pashukanis, the social relations of commodity exchange. The article responds to these criticisms in a most un-Kelsenian manner, drawing upon historical sociological literature on early modern state formation to cast doubt on both Schmitt and Pashukanis’s historical accounts. It argues that the forms of political power and commodity exchange upon which Schmitt and Pashukanis’s theories rely were historically specific possibilities opened up by the same process of generalisation and depersonalisation of power relations that allowed for an autonomous ‘public’ system of legal norms. Thus, rather than the fixed causal ground for the development of modern law, ‘the political’ and exchange between equals exist in a relation of ‘difference-in-unity’ with the law. The article concludes that Kelsen’s notion of the Grundnorm is best explained as an attempt to capture the new possibilities and responsibilities opened up a normative system whose ultimate justification now lies only within itself. (shrink)

This book is about what makes law possible. A stranger to contemporary legal practice might think such a book unnecessary, but the eight authors of this book share the view that what makes law possible is under siege today. The authors also share the hope that by exploring how law is a humanistic practice that involves whole persons, the siege will be reversed. The pathbreaking work of University of Michigan Law professor Joseph Vining provides the authors' focus for their (...) varied analyses of how law works not through force but, instead, through affinity.Vining's four books and other writings, spanning four decades, reveal the hidden connections by which men and women freely create and sustain a world of meaning through the phenomena we associate with law. Drawing on legal philosophy, theology, musicology, and other humanistic disciplines, the authors join Vining in discovering how law is, as Vining has written, “evidence of view and belief far stronger than academic statement or introspection can provide.” Law as Vining and the other authors reveal it is evidence of our better selves, not of the totalizing and brutalizing selves humans are capable of becoming, sometimes even under cover of law.In addition to the three editors, the book's authors are Joseph Vining, Rev. John McCausland, Hon. John T. Noonan, Jr., Steven Smith, and James Boyd White.Lawyers and all who care about law, the human future, and what human freedom can do to connect person to person as valued will find much to ponder in the chapters of this book. By avoiding jargon and the cliché, the authors follow Vining's lead in illuminating the deep springs of law's vitality and authority. (shrink)

Legal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred (...) to in the paper as “legal survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest. (shrink)

The concept of legal gap is tackled from a number of logical perspectives and semantic methods. After presenting our own goal (Section 1), a first introduction into legal logic refers to Bobbio’s works and his formalization of legal statements (Sections 2 and 3). Then Woleński’s contribution to the area is taken into account through his reference to the distinction between two juridical systems (viz. Common Law vs Civil Law) and the notion of conditional norms (Section 4). The (...) notion of reason is also highlighted in the case of Raz’s legal logic, thereby leading to a future connection with von Wright’s logic of truth and an analogy made with an anti-realist reading of truth-values and norms (Section 5). Our personal contribution is introduced through a reflection on how logic should deal with the logical form of norms (Section 6), before entering a number of crucial definitions and distinctions for the concepts of norm, legal statement, and promulgation (Section 7). The final point is a proposed semantics for legal statements, which is both many-valued and gap-friendly (Section 8). A distinction between a number of requirements for permission and forbiddance leads to a set of non-classical juridical systems in which non-permission and forbiddance are not equivalent with each other any more; this does justice to Woleński’s former distinction between Common Law and Civil Law, also leading ultimately to a non-classical square of legal oppositions in which several legal operators may collapse into other ones (Section 9). (shrink)

This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This (...) is the first book that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects. (shrink)

The article explores court forms as an interactive genre essential for legal-lay communication in civil and family proceedings: court forms elicit key information from predominantly lay users for the purposes of court administration and the judiciary. The information presented in court forms defines the agenda and communicative focus of the subsequent hearings and settlement negotiations, and in some instances even the path the proceedings would take. It is thus important to consider court forms in terms of their comprehensibility as (...) well as functionality for eliciting legally coherent narratives and facilitating efficient engagement of lay participants with the proceedings. The case study presented in the article draws on the combination of corpus linguistics and discourse analysis to explore two versions of the court form most frequently used by self-represented parties in England and Wales, ‘Form C100: Apply for a court order to make arrangements for a child or resolve a dispute about their upbringing’. The comparison of the paper form and its redesigned online version identifies the improvements made as part of the digitisation process but also indicates communicative challenges which can prevent the lay person from presenting the relevant information. The discussion provides an opportunity to reflect on the role of language in online courts. (shrink)

This article examines various models of legal interpretation and their implications for comparative law, drawing inspiration from Rodolfo Sacco’s early career theories. It contrasts the Tarskian Correspondence Model, which seeks objective reality in legal texts, with the Symphonic Model, which interprets legal language as a harmonious interplay of elements. The Tarskian model reflects classical legal thought’s search for fixed meanings, while the Symphonic model aligns with contemporary legal practice’s nuanced understanding. Further, the article explores Heraclitean (...) Realism, acknowledging the fluidity of language and meaning, and the Provocative Tapestry Model, which introduces paradox and tension in legal interpretation. These models are likened to narrative genres, offering varied approaches to understanding legal discourse: the Tarskian model as a detective novel, the Symphonic model as a comedy, the Living Tapestry model as a melodrama, and the Provocative Tapestry model as a tragedy. The article argues that these models of legal interpretation do not inherently carry a political essence; the political stance emerges from the choices of interpreters. It emphasizes the need for human agency in the application of legal norms and the responsibility of legal professionals to actively engage in the interpretation process. Comparative law is discussed as a discipline that benefits from understanding these diverse interpretative models, as it seeks to analyze legal systems across jurisdictions. The article concludes that while narrative styles in legal interpretation have political histories, they are not bound to specific ideologies, highlighting the versatility and subjectivity in the field of legal interpretation. (shrink)

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form (...) of law and human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address. (shrink)

There are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain (...) functions and they are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed. (shrink)

Challenging the assumptions of modern political and legal philosophy, this book presents a historical account of the development of thinking about justice and political obligations.

Writing Chinese Laws: The Form and Function of Legal Statutes Found in the Qin Shuihudi Corpus. By Ernest Caldwell. Routledge Studies in Asian Law. New York: Routledge, 2018. Pp. x + 202. $149.24 ; $24.98.

In his Leçons VII (Le désir politique de dieu) Pierre Legendre applies the idea or expression of ‘instituting time’ (‘instituer le temps’), that is, working with time as a malleable material, but at the same time conceptualising time as dogmatic time, especially in the interpretation of law. As an example of this concept he refers to the English Common Law, a ‘style’ of ‘governing by solving cases’. This text will analyse the notion of two times of law—inaugural/mythological and historical—and how (...) it applies to Common Law judgments, as well as to Institutional Writers that are characteristic of Scots Law in particular. (shrink)

Deep brain stimulation (DBS), a surgical procedure involving the implantation of electrodes in the brain, has rekindled the medical community’s interest in psychosurgery. Whereas many researchers argue DBS is substantially different from psychosurgery, we argue psychiatric DBS—though a much more precise and refined treatment than its predecessors—is nevertheless a form of psychosurgery, which raises both old and new ethical and legal concerns that have not been given proper attention. Learning from the ethical and regulatory failures of older forms (...) of psychosurgery can help shed light on how to address the regulatory gaps that exist currently in DBS research. To show why it is important to address the current regulatory gaps within psychiatric DBS, we draw on the motivations underlying the regulation of earlier forms of psychosurgery in the US. We begin by providing a brief history of psychosurgery and electrical brain stimulation in the US. Against this backdrop, we introduce psychiatric DBS, exploring current research and ongoing clinical trials. We then draw out the ethical and regulatory similarities between earlier forms of psychosurgery and psychiatric DBS. As we will show, the factors that motivated strict regulation of earlier psychosurgical procedures mirror concerns with psychiatric DBS today. We offer three recommendations for psychiatric DBS regulation, which echo earlier motivations for regulating psychosurgery, along with new considerations that reflect the novel technologies used in DBS. (shrink)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning (...) is false. (shrink)

Mālik and Medina: Islamic Legal Reasoning in the Formative Period. By Umar F. Abd-Allah Wymann-Landgraf. Islamic History and Civilization, vol. 101. Leiden: Brill, 2013. Pp. xiv + 552. $277, €199.

This paper discusses the legal aspects of the activities of transnational corporations. The relevance of the subject matter is determined by the significant impact exerted by transnational corporations on the world economy in general and on the economic situation of the country in which such corporations are registered as a subject of legal form of ownership in particular. Quality functioning of transnational corporations is an effective factor for the formation of sustainable development. This study reveals and determines (...) the relationship between the scale of activity of transnational corporations and their legal status within the framework of both single countries and entire economic communities, the individual subjects of law of which are transnational corporations. The practical significance of this study lies in the possibility of identifying and stating key aspects that play a significant role in assessing the practical activities of transnational corporations in the context of existing legal law with the ability to use the identified patterns in specific legal practice. The results of this study can be of significant practical importance for employees in the field of legal support for the activities of transnational-scale corporations, who are faced with the need to deeply analyse the legal aspects of the activities of these organisations and provide management of such structures with timely, highquality legal recommendations regarding the correction of the activities of these organisations in the context of the existing legal field. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial (...) intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by (...) the state. The second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

Since the Reformation and Enlightenment, the Western world has witnessed the incremental decline of religious influence. Yet, key legal protections and duties incumbent on civilians and state actors in both avowedly secular states and ruling theocracies, predominantly Islamic, are to a lesser or greater extent determined by religious values. Although it is often claimed that the modern secular state encourages the adoption of liberal values and allows for the formulation of general law according to the free will of its (...) people, the historical legacy of law and particularly its synthesis with the Judeo-Christian heritage is apparent. In the UK, the continuing centrality of religion in what purports to be a secular system of laws, is demonstrated by the introduction of elements of Sharia law. In an increasingly culturally-diverse society, the recognition of Islamic law may be interpreted as the tacit acknowledgement of the existing inherent faith influences which continue to inform many legal innovations, and represents an explicit attempt to rebalance the privileging of one set of precepts above another. It is suggested that religion continues to occupy a central position in lawmaking; performing a cultural, political, institutional and, importantly, symbolic role and this is evidenced for instance by the narratives which are imposed on individuals in relation to areas of topical significance such as matrimony, terminal illness, abortion, gender and sexual morality. This paper argues against those pronouncements of the retreat of religion in state affairs and, rather, reveals a set of key structural relations and signifiers which are informed by opinions redolent of, not least of all, a peculiar generic proscriptive religiosity. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, (...) two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than (...) the content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)

al-Qurṭubī (d. 671/1273) was a scholar of tafsīr, ḥadīth and fiqh. He experienced both Western and Eastern civilizations in the geography of Andalusia and Egypt, respectively. In his famous Tafsīr called al-Jâmi li-Aḥkâm al-Qur’ān, al-Qurṭubī comparatively explained and interpreted all legal verses. Also, in addition to exploring the spesific legal rulings denoted in the Qur’ān and the Sunnah, al-Qurṭubī has largely interpreted the legal norms regarding the issues of jurisprudence. By doing this, al-Qurṭubī contributed to the formation (...) and development of a civil codification activity under a kazuistic format. The casuistic structure of the legal exegesis of the Qur’ān is anlaysed in terms of the form and content in the sample of al-Jâmi. Therefore, neither the similarity or similarity of the schools of the legal exegesis of Qur’ān and of the legal schools nor the disciplines of positive law, but their kazuistic structures, which systems they built and which interpretation methods and techniques they operated on this basis, were evaluated in terms of their original structure. In this direction, the article emphasizes that the casuistic structure of the legal exegesis of Qur’ān is established on and by the Prophet’s sayings and practices. Although, it has been observed that it is a unique tradition, both as form and content, and that the interpretation means are identified with its own unique structure, it has been concluded that the casuistic method is not one of the fundamental elements of both this tradition and Islamic legal thought. This means that the casuistic method is always a tool that can be changed and transformed according to the conditions of time and space.Summary: As it is stated in al-Isrāʾ 17/106: “And (it is) a Qur’ān which we have separated (by intervals) that you might recite it to the people over a prolonged period. And we have sent it down progressive.”, the Qur’ān is revelaed in about twenty-three years by taking into consideration the sociocultural positions of its interlocutors. The Prophet Muḥammad explained the Qur’ān by the virtue of the ayah: “(We sent them) with clear proofs and written ordinances. And We revealed to you the message (i.e. that you may make clear to the people what was sent down to them and that they might give thought.” (an-Naḥl 16/44). Of course, there is no subject integrity in this Qurānic chronology-which also reflects life. As a matter of fact, the issues related to individual and society have been independently analyzed by a casuistic/case-based method and ruled in accordance with the intention of Allāh. It can be seen that the ayahs “They ask you about wine and gambling. Say, ‘In them is great sin and (yet, some) benefit for people. But their sin is greater than their benefit.’ And they ask you what they should spend. Say, ‘The excess (beyond needs).’ Thus Allāh makes clear to you the verses (of revelation) that you might give thought.” (al-Baqara 2/219) and other ayahs such as (al-Baqara 2/186; al-Nisāʾ 4/176; al-Anfāl 8/1) reflect the casuistic method in terms of form and content. This can also be exemplified by the Sunna. For example, when the question “Is it permissible to perform ablutions with sea water?” was posed to Messenger of Allāh. He said that “It’s water is clean and his dead (fish) are lawful “(Abū Dāwūd, “Ṭaḥāra”, 41). By this answer, the Prophet Muḥammad indeed ruled and established a general rule.It can be said that this early example table formed the basis of the legal exegesis of the Qur’ān in terms of origin, source and application, and that its shape and content are often immanent in the examples it contains. In this article, based on the prophetic period, the legal exegesis of the Qur’ān and casuistic structure has been studied with an analytical and critical approach. Again, because the casuistic method is one of the universal concepts of east-west science and cultural life, an interdisciplinary approach was exhibited in this study. The roots of the casuistic method date back to 5000 BC and the legal systems of the society and states of antiquity are examined from this method. This method is chosen and used in the legal exegesis of the Qur’ān. However, this study does not analyse the sameness or the similarity of the legal exegesis of the Qur’ān and the legal schools nor the positive law disciplines, but the casuistic structures used by these, the systems they have built on this basis and the interpretation methods and techniques they have been used and analyzed in terms of their originality.In effect, the article embodies the Qur’ānic exegesis called al-Jâmi li-Aḥkâm al-Qur’ān by al-Qurṭubī (d. 671/1273), a scholar of tafsīr, ḥadīth and fiqh. In addition to the works of the aḥkām al-Qur’āns, which deal with the interpretation of the ayahs related to the subjects of ʿibādāt, muʿāmalāt ve ʿuḳūbāt, many other works have been used in parallel with the development of the legal exegesis of the Qur’ān. al-Qurṭubī, who comparingly explained the legal verses in his tafsīr, investigated the aspects of the Qur’ān and Sunna that indicate the aḥkām, generally interpreted the existing legal norms within the framework of evidence and introduced his own opinions and etasblished his ijtihād. Thus, he benefited from the tafsīr accumulation and contributed to the formation and development of a civil legalization activity with casuistic format. As a matter of fact, the casuistic/case-based method has been used as a codification/tadwīn technique by Western and Eastern legal disciplines and systems. The casuistic method covers both concrete event and abstract ruling methods. In the casuistic method, which is fact-based event, the laws are organized according to all possible events that can be experienced. On the other hand, the abstract method, which is defined as the abstract ruling method, aims to organize the laws in a general and abstract framework. In the article, it is stated that the legal exegesis of the Qur’ān contains both concrete and abstract dimensions in its own way. It has been emphasized that the legal exegesis of the Qur’ān is based on divine revelation (waḥy) and that it is separated from human law as its origin and source, and that this feature is its most faithful characteristic. On this basis, the legal exegesis of the Qur’ān is a separate scholarly tradition and has its own definition, subject and purpose. Its original structure and function have been noted. As a matter of fact, the subject and purpose of the legal exegesis of the Qur’ān always require the tafsīr and taʾwīl of the legal verses having regard to the Qur’ān and Sunna. It is also necessary for the purpose of investigating the ways in which nuṣūṣ (an explicit statement upon which a ruling is based) can refer to the provisions and to resolve the issues related to individuals and society. As a matter of fact, the legal verses function as a guide for humanity until the day of judgment as the inspiration for religious-legal matters; they contain the content and provisions that offer happiness in the two worlds. (shrink)

This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and recommendations for forensic psychiatric and legal practice are offered. Many legal systems have an insanity defense, in one form or another. Still, it remains unclear exactly when and why mental disorders affect a person’s moral or criminal responsibility. Questions addressed in this book include: Why should insanity be a component of our legal (...) system? What should be the criteria for an insanity defense? What would be the reasons for abolishing it? Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. (shrink)