In this essay, I continue Nicholas Wolterstorff’s work of developing a rights-based theory of ethics called eirenéism, which maintains the good life only occurs when justice—as a moral state of affairs where agents enjoy the goods to which they have a right—is achieved. As a result, justice is eirenē (the Greek word for peace). In the process of developing eirenéism I explain how eirenē differs from other conceptions of peace, and I offer several interpretive arguments for how best to understand (...) eirenéism in relation to better-known competing ethical theories, like utilitarianism, virtue ethics, duty ethics, and care ethics. (shrink)

Court interpreting in Croatia is a very unregulated field especially regarding the training and the skills that are to be acquired in order to pro- vide accurate translation at courts. One of the prerequisites according to the Regulations on Court Interpreters in Croatia is knowledge of the structure of judicial power, state government and legal terminology. Although the Regulations prescribe that the training should last no longer than two months, the organisations providing such training shorten this to three (...) or four days. Taking into account all that has been said one realizes that in such short time a per- son cannot be properly qualified to practice as a court interpreter. According to the EU Directive on the right to interpretation and translation in criminal proceedings member states should provide adequate training in order to ensure the quality of interpretation and to avoid that suspected or accused persons complain that the quality of interpretation was not good enough to secure the fairness of the proceeding, which according to Article 2 of the Directive they have the right to. Since Croatia joined the European Union on 1 July 2013, it will have to change its Regulations on Court Interpreters in order to com- ply with this Directive. This paper will try to analyze the problems within the scope of court interpreter’s profession in Croatia both in civil and in criminal proceedings. Several examples will be suggested as the possible model for modifying court interpreting in Croatia. Since this profession is often underrated by the national courts, the paper will suggest ways to prevent such views and point out the importance of good court interpretation. (shrink)

Japan saw a sharp increase in the number of non-Japanese residents and migrants during the period of its high economic growth in the 1980s and 1990s. This impacted on how the justice system provides language assistance to non-Japanese speaking background parties in investigative interviews and courtroom proceedings. While the number of defendants who received interpreter assistance in Japanese criminal trials hit its peak in 2003, quality of legal interpreting is still a serious issue. In this article, we discuss how the (...) Japanese criminal justice system has approached issues in judicial interpreting in the last four decades by analysing how “court interpreting” and “court interpreters” have been represented in court decisions. By doing so, the paper aims to explore the judiciary’s ideologies about court interpreting and problematise these ideologies in looking towards improvement of language assistance in the Japanese legal system. (shrink)

The results of numerous research studies have revealed that the style in which people deliver their speech impacts on the way they are perceived by others. This is particularly so in the adversarial courtroom, where witnesses' credibility is crucial for winning a case. When witnesses do not speak the language of the courtroom, interpreters are employed to interpret the proceedings accurately. The meaning of `accuracy', however, may not be fully understood by all involved. This article presents the results of a (...) data-based study of Spanish—English court proceedings where it was found that interpreters tend to accurately interpret only the content of witnesses' answers, but constantly alter the style of testimony, either favourably or detrimentally, thus potentially changing the outcome of the case. (shrink)

Linguistic equity through an interpreter is not merely a fundamental human right but also an integral part of procedural justice. As codified in the professional code of conduct, interpreters should faithfully interpret everything that has been said in the exact same manner as the original speakers. Much has been researched about the content. Little has been known about the interpretations of the manner. Drawing on one hundred questionnaire responses, this article examines the interpreters’ awareness of the manner of speech in (...) Australian virtual courts and remote interpreting settings. The results suggest a general lack of understanding of the manner of speech, as reflected by interpreters’ inadequate knowledge of definitions and specific types of manner-related features. Furthermore, the insufficient understanding of the manner of speech impacts the interpreters’ perceptions of the manner of speech in the original utterances, and their views of the faithful reproduction of the se feature in courtroom discursive practices. The qualitative and quantitative analyses of written responses provided by professional interpreters provide insights into the practical aspects of reproducing the manner of speech in court. (shrink)

ABSTRACTRecent legislation in Spain has transposed Directive 2010/64/EU, which recognises interpretation as an essential tool for safeguarding fairness in criminal proceedings, in particular, for preventing any state of defencelessness. Previous research, however, has suggested important deficiencies in court interpreting in this country. This article analyses court interpreting from Chinese to Spanish, based on a case study of a recording of a criminal trial that took place in Barcelona in February 2015. The trial was transcribed verbatim and annotated (...) in accordance with Cecilia Wadensjö’s distinction between “talk as text” and “talk as activity.” The analysis focuses on examples of errors of interpretation, speech style and non-renditions. The results are compared with those of a corpus of 55 court proceedings in which the interpretation was from Spanish to English and from French to Romanian. The article concludes with a discussion of the factors—s... (shrink)

A practising lawyer is not always aware of the fact that case decisions are more determined by legal doctrine – attitudes of authoritative lawyers and scientific legal discussion of other forms – than by changes in positive law. Regulations of specific case decisions are directly reliant on the ideas and statements of legal discussions – as one of the factors influencing the decisions of the courts. During the twenty years of independence, the form, content and argumentation of the Lithuanian (...) class='Hi'>court judgments has fundamentally changed, especially with regard to the understanding of the courts (the judiciary) in terms of how unrestrained they are when interpreting a legal text and making decisions. The judicial discretion to interpret a legal text is treated diversely in various legal traditions and within the scope of the western legal tradition itself. In common law countries, the competence of a judge to deviate from a legal text or to create their own legal framework is treated with much greater understanding. In civil law tradition, the attempts of judges to take over the functions of the legislature are usually considered more critically. Even the representatives of comparative law emphasise that judges in civil law tradition countries tend to call the creation of legal rules differently – mostly as interpretation of the law. The discussion on the power of judges to create law through its interpretation has been taking place everywhere and at all times. Judicial discretion in decision-making is not due to individual factors such as era, social structure, cultural background, but is determined by some other factors that are not easy to identify. The interpretative activity of the courts is also influenced by the prevailing doctrinal regulations of judicial activity. It is the changes of the Lithuanian legal doctrines that could have encouraged the courts to determine the scope of their activity in the direction of its growth. After the restoration of independence, the Lithuanian legal community began an active discussion on whether legal positivism was the correct form of legal understanding. Studies appeared, in which legal positivism was seen exclusively negatively, reminding that it was specifically this legal concept that had eliminated values from law and was likely to be blamed for the ills of humanity such as the Holocaust or genocide. Numerous publications emerged calling judges to be active and reminding them to check every rule of law in accordance with its consistency with the principles of law and to disapply any rule of law that did not meet this requirement. Almost universally, lawyers (and especially the courts) were encouraged to move from mechanical (a priori improper) application of the law to the creative (a priori the best and aspirational) one. The courts were encouraged: they started to freely interpret legal rules, under which the legislature established their competence; although court judgments have become more reasoned, this did not prevent them from applying speculative or ambivalent arguments; criticism could be expressed to courts due to lengthy processes that are, objectively looking, not required, and for low activity in exercising their powers to prevent abuse of law. Respect for the legislature directly responsible for creating legal rules and taking care of legal protection, judicial recognition that a court should deviate from the legal text or otherwise create new rules only when it is objectively inevitable, and lawyers’ societal openness to discussion on various issues – these can become conceptual prerequisites for higher confidence in the courts. (shrink)

The article aims to provide a semiotic interpretation of the sign of the Ecclesiastical Court within the legal framework from temporal and spatial perspectives. The starting point of the research is the idea that the history of the Russian Ecclesiastical Court is inextricably linked to the history of Russian society and secular court. Consideration of the pre-revolutionary ecclesiastical and secular law helps us explore principles of the ecclesiastical proceedings and organization, identify contradictions in understanding modern Ecclesiastical (...) Court. Its sign is not only limited to the legal interpretation. In his novel The Brothers Karamazov, Dostoevsky F. M. gave the sign of the Ecclesiastical Court symbolic meaning and, thus, expanded it beyond the existing legal framework. The Ecclesiastical Court is one of the symbols of Russian spirituality which is reflected in the concept of “Russian soul”. Rational elements of the sign of Ecclesiastical Court as well as its sensual and metaphorical components, are analyzed using the category of Truth. Clearly, the Cross is sign-symbol for Christianity. But if applied to the concept of Ecclesiastical Court, the Orthodox Cross becomes a sign-index. As a result, several semantically heterogeneous meanings of the sign of Ecclesiastical Court are revealed and described. (shrink)

Malay Court Religion, Culture and Language: Interpreting the Qurʾān in 17th century Aceh By RiddellPeter G., xviii + 346 pp. Price HB £80.00. EAN 978–9004339491.

The neutrality of the art and architecture of courtrooms and courthouses has dominated the public perception in the Indian context. The courtroom design and the visual artistic elements present within these judicial places have very often been considered to be insignificant to the notions of law and justice that they reflect. As art and architecture present certain historical narratives, reflect political allegories and have significant impact on the perceptions of their viewers, they have critical socio-political ramifications. This makes it pertinent (...) to explore them and investigate the paradox of their deployment and interpretation in today’s increasingly mediatized world. Through an ethnographic study of the Supreme Court of India, this paper interprets its art and architecture, and, the symbolism and semiotics reflected through them. Arguing against their neutrality and insignificance, the paper demonstrates how they reflect nationalism, certain ideologies and power-space dynamics. It further argues that they act as evidence of political metaphors related to justice, power and democracy. With a conversation between law, architecture and semiotics, the paper investigates the historical and spatial dimensions of its architecture and artistic elements. Mapping the Court’s architectural elements, I examine how the visual representation of ‘justice as virtue’ finds translation in its design through transfer of certain images, including the image of the ‘scales of justice’, into it, while absenting the notion of ‘justice as struggle’—to contemplate on how legal architecture gives evidence to the vexed relationship between law and justice and also of the break from the colonial past. (shrink)

This book explores the question of how international law is applied by domestic courts. Through case studies and analysis the contributors consider how traditions and diversity affect the interpretation of international law, from a mixture of doctrinal, practical, and theoretical approaches.

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and (...) the administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one (...) must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text. (shrink)

The aim of this article is to determine how can new interpretations of old institutes change the status of the taxpayers and tax administrators and to suggest what can the Ministry of Finance do to solve the problem – it can try setting a uniform interpretation of tax institutes. It deals with two findings of the Constitutional Court of the Czech Republic concerning two institutes described in Tax Administration Act: time-limits for tax assessment and tax inspection; and one (...) finding of the Highest Administrative Court concerning local taxes. Court interpretation is only one of several possibilities of interpretation. Continental system of law differs from the Anglo-American system and we should search for information in the acts, and court practice should be used only alternatively. (shrink)

Journal Name: The Law & Ethics of Human Rights Issue: Ahead of print.

The subject of this study are the argumentation strategies applied by the Polish and German apex courts competent in criminal matters, namely the Supreme Court and the Federal Court of Justice, respectively. The investigation encompasses a total of 200 rulings issued by the criminal panels of these bodies. Particular focus was put on examining which arguments both courts apply to solve interpretation problems, and secondly, how these courts systematize the interpretation process. Methodologically, the examination utilizes, inter (...) alia, the principles of qualitative research, without neglecting the legal dogmatic perspective. A crucial theoretical foundation underlying this study is the distinction between formalistic and substantive legal cultures. The examination reveals that neither the Polish nor the German legal culture is purely formalistic or value-oriented. Nevertheless, the Supreme Court of Poland shows greater affinity for formalistic arguments, whereas the substantive interpretation methods are more widespread in the judicature of the German Federal Court of Justice. In particular, the Polish Court prefers the linguistic interpretation, whereas the German Court favours the purposive approach. (shrink)

Language-related right in the legal proceedings is mostly associated with access to interpreting. Literature on the bilingual courtroom primarily centres on the role of interpreters in the intercultural communication. This paper, drawing on discourse analysis of a case study in a Chinese criminal court, investigates the atypical role played by an interpreter when she ceases to be an active participant in the bilingual interaction. It discusses how language ideology underlying the judicial practice could transform the role of the interpreter (...) and convert the bilingual arterial into a monolingual one. Situating the analysis in the wider social and legal context of Chinese criminal justice system, this paper attempts to explain and interpret the judicial behaviour to keep the interpreter silent and the impact on the language rights enjoyed by the minority-language-speaking defendants. (shrink)

The Supreme Court”, first published in 1987, is a concise and informative narrative of the highest court in the USA. It contains much that is of interest and probing about the court and the intrigues of its decision-making. Moments abound when the reader is taken on a journey through the humanity of the cases, the erudite corridors of high-law and into the intensely high-strung but level-headed hallowed chambers of the Justices and Justice. What is revealed is the (...) exacting mask of law, the humanity and affectations of those whose burden it is to deliver far-reaching judgment on the American people. However, more revealing of the storyline is, perhaps, not so much the woven narratives contained within the three pages of text as it is the peripheral story (what Gerard Genette called the ‘paratext’) unfolded in the cover wraps, what they contain and the stories they weave. In this paper, I examine the liminal devices of ‘The Supreme Court’. I argue that much of the systemic cognition of the legal system can be divined from a scholarly encounter with these elements. Furthermore, the paratexts of two editions of the book indicate a paradigmatic shift in the legal perception of both the Supreme Court and the author between the periods of publication. This underscores the law not only in its reactive form but also in its dexterity in shifting its position to reflect the reality of its time. On each occasion, it alters the legal consciousness of a nation. Yet, it stays remarkably stable and self-effacing. The essential question is one of deference. It is of great interest that the Chief Justice targets the informed and the interested as opposed to the ignorant and ambivalent. The liminal devices, I observe, are probably as eloquent with this message as the text within. The paratext bears testimony to this. -/- Keywords. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of three landmark (...) decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights.]. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of three landmark (...) decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights. (shrink)

Arab and English cultures are incongruent, where the former is greatly influenced by religion when compared to the latter. This study focuses on court interpreting from Arabic into English and questions the interpreters’ objectivity when rendering religious and cultural expressions, bearing in mind that certain cultures, like the Arab and Muslim ones, have significant religious ties. To this end, fifteen transcripts were randomly collected from Canadian court hearings. The analysis showed that interpreting religious and cultural expressions can be (...) complex, especially when the original speaker attempts to transmit a notion that may have negative implications in the target language. The results also showed that court interpreters either added explanations to religious and cultural expressions or omitted them. Such additions and omissions may be used to avoid negative stereotypes other cultures have about Muslims and Arabs. The study recommends that future researchers interested in legal interpreting consider the non-verbal factors that can be observed during court hearings. The study suggests allocating extensive training sessions to interpreters on how to impartially render culture-bound expressions, mainly in the legal context. (shrink)

The article analyses the problem of using European constitutional heritage in the practice of the Constitutional Court of the Republic of Latvia when interpreting the Constitution of the Republic of Latvia. The author analyses several judgments of the Constitutional Court of Latvia, wherein the Court refers to European legal heritage, when interpreting separate norms of the Constitution of the Republic of Latvia. Such practice is particularly evident in two categories of cases. The influence of European legal heritage (...) is most clearly expressed in cases where the Court ascertains the essence of the continuity doctrine and when interpreting human rights enshrined in the Constitution (the Satversme). The author notes that constitutional courts reveal two tendencies. On the one hand, a constitutional court cannot ignore the international context. European courts are influenced by European Union law and the jurisprudence of the European Court of Justice. On the other hand, constitutional court judges in every country have sworn to be loyal to the national constitution and thus have a duty to exercise constitutional control. These tendencies are not necessarily objectionable. On the contrary–knowledge of the international legal context helps the Constitutional Court exercise its mission. (shrink)

The paper focuses on the general principles established in the caselaw of the European Court of Human Rights while applying and interpreting the Article 3 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides: „The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.“ Article 3 (...) of the First Protocol enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system. It refers not only to positive obligation of the Contracting State to organize democratic elections, but also guarantees individual rights, including the right to vote and the right to stand for election, although this is not explicitly stated in it. These rights are not absolute; there is room for “implied limitations” and Contracting States are given a wide margin of appreciation in this sphere. However, these limitations must be such that the rights in question were not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness, should be imposed in pursuit of a legitimate aim and should not be disproportionate. (shrink)

The boundary between interpretation and creation of law is sometimes so subtle and intangible that the court judgments may give rise to discussions about judges having taken the role of lawmakers. This article reveals the concept of ‘precedent’ in the Lithuanian legal system as the influence of the common law has increased on the continental law and ideas of stare decisis have been transferred to the Lithuanian legal system. The start for this was a famous judgment of 28 (...) March 2006 by the Constitutional Court of the Republic of Lithuania, where the court held that courts adopting decisions in cases of corresponding categories are bound by their own decisions in analogous cases; the courts of lower instance are bound by the decisions of the courts of higher instance in cases of the same categories. The notion of precedent has been widely used in the decisions of the Supreme Court of Lithuania. Thus, the term “precedent” has become almost as common as ‘judicial decision’. However, it is important to note that in the jurisprudence of Lithuanian courts and legal literature the notion of precedent has a different meaning than in the common law countries. It is, obviously, due to the different principles of the formation of the two systems: the common law and the continental law. (shrink)

Building on pragmatist uses of semiotics as a heuristic for understanding social interaction, this article argues that temporality is a significant and undertheorized component of signs and their interpretation. Using transcripts from the oral argumentation of a Supreme Court case, I examine how different interpretations of the same sign rely not only on differing understandings of the sign’s object and how that object is signified but also, more specifically, differing understandings of the sign’s relationship to the past, present, (...) and future. (shrink)

“Interpretation” is a term that encompasses both the most esoteric and the most fundamental activities of our lives, from analyzing medical images to the million ways we perceive other people’s actions. Today, we also leave interpretation to the likes of web cookies, social media algorithms, and automated markets. But as John Frow shows in this thoughtfully argued book, there is much yet to do in clarifying how we understand the social organization of interpretation. On Interpretive Conflict delves (...) into four case studies where sharply different sets of values come into play—gun control, anti-Semitism, the religious force of images, and climate change. In each case, Frow lays out the way these controversies unfold within interpretive regimes that establish what counts as an interpretable object and the protocols of evidence and proof that should govern it. Whether applied to a Shakespeare play or a Supreme Court case, interpretation, he argues, is at once rule-governed and inherently conflictual. Ambitious and provocative, On Interpretive Conflict will attract readers from across the humanities and beyond. (shrink)

Although the ethical and legal worlds are often at odds, a wealth of information is gained by evaluating legal decisions from an ethical perspective. Evaluating court decisions from an ethical viewpoint, increases our knowledge, and helps to beneficially influence future court precedent. Of particular importance to the relationship between the law, business, and ethics, is the ideal of beneficence and non-maleficence. It is the court’s role to protect the rights of individuals, especially with regards to their health (...) care provision. These issues are especially present in conflicts that relate to the availability and access to health care and insurance coverage. Patient autonomy, physician malpractice and informed consent are all influenced by such current court precedent as addressed bythe Employee Retirement Income and Security Act of 1974 (ERISA). This leads us to the central theme of this discussion on the ethical implications of the Supreme Court precedent on ERISA. (shrink)

The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of (...) the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order and the political order. The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts “permitted” and “prohibited,” “threat of use” and “possession of the weapon,” and “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law. (shrink)

Courting competency: nursing and the politics of performance in practiceNurses have long anguished over how best to assess performance in clinical practice. The ‘competency’ movement appears to have provided a solution to this problem. In this paper I undertake a ‘radical hermeneutic’ interrogation of the cultural text of clinical practice doubled with a poststructuralist interpretation of the literal text of the Australian competency project. Through this work I attempt to expose some of the deeply embedded assumptions that underwrite the (...) competency movement and amplify the problems posed by an uncritical appropriation of competency based training and assessment in nursing education. (shrink)

In 'A Constitution of Many Minds' Cass Sunstein argues that the three major approaches to constitutional interpretation – Traditionalism, Populism and Cosmopolitanism – all rely on some variation of a ‘many-minds’ argument. Here we assess each of these claims through the lens of the Condorcet Jury Theorem. In regard to the first two approaches we explore the implications of sequential influence among courts (past and foreign, respectively). In regard to the Populist approach, we consider the influence of opinion leaders.

Quel paradoxe de voir revenir, dans un monde oscillant parfois entre désabusement et cynisme, la question des «vertus» et leurs éthiques afférentes. Elles ont même un statut spécifique, au sein de la philosophie morale contemporaine, à côté des morales déontologiques du devoir et des morales conséquentialistes. Profitant de ce renouveau, ce court traité aborde l'immense chantier des débats contemporains sur l’éthique des vertus, mais via la petite porte dérobée de l’herméneutique, c’est-à-dire par une réflexion sur le désir de comprendre (...) et sur son inséparable et corollaire travail d’interprétation. Deux questions essentielles sont au coeur de ce livre. Le désir «herméneutique» de comprendre – qui n’est ni la volonté de savoir ni la curiosité théorique – peut-il être actualisé sous la forme d’un certain nombre de vertus intellectuelles et morales? Ensuite, comment cet art de comprendre herméneutique peut-il contribuer à la réalisation d’une vie bonne, avec et pour autrui, dans des institutions justes? Voici un livre d’une rare et intense richesse théorique et pratique qui fera le bonheur de ceux pour qui la philosophie doit être une manière de vivre et de nous rendre meilleurs. (shrink)

English philosopher John Stuart Mill's understanding of the freedom of speech has been increasingly adopted over the last century into the US Supreme Court's interpretation of the First Amendment, beginning with Justice Oliver Wendell Holmes Jr.'s use of an analogy that is now known as the 'marketplace of ideas'.

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political (...) reasons on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

Among multiple legal challenges to the Patient Protection and Affordable Care Act (PPACA) is the premise that PPACA's “individual mandate” (requiring all individuals to obtain health insurance by 2014 or face civil penalties) is inviolate of Congress' interstate commerce powers because Congress lacks the power to regulate commercial “inactivity.” Several courts initially considering this argument have rejected it, but federal district courts in Virginia and Florida have concurred, leading to numerous appeals and prospective review of the United States Supreme (...) class='Hi'>Court. Despite creative arguments, the dispositive constitutional question is not whether Congress' interstate commerce power extends to commercial inactivity. Rather, it is whether Congress may regulate individual decisions with significant economic ramifications in the interests of protecting and promoting the public's health. This article offers a counter-interpretation of the scope of Congress' interstate commerce power to regulate in furtherance of the public's health. (shrink)

This paper argues that the framework of Community of Practice is beneficial for an understanding of the linguistic practices that international courts and tribunals employ in their interpretative approaches. Other than the frameworks of the social network, the speech community, and the epistemic community, the framework of Community of Practice can be said to allow for a more critical assessment of the social context in which international courts and tribunals function. Such an assessment is crucial in that it is in (...) that social context that interpretative approaches can be said to take form and in return shape the social institutions that international courts and tribunals comprise. That is, the framework of Community of Practice entails the notion that any form of meaning and its subsequent reifications, including, actual language use, are continually negotiated communally as a result of social interaction and, hence, shape the social constellations in which such interaction takes place accordingly. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a (...) manifestation of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the (...) class='Hi'>Court’s idiosyncratic translation policy. (shrink)

Hegel called world history a court of judgement, a world court, and in his Lectures on the Philosophy of World History he took Africans before that court and found them to be barbaric, cannibalistic, preoccupied with fetishes, without history, and without any consciousness of freedom. -/- In this paper, after rehearsing some of the more familiar objections to Hegel's verdict against Africa, I turn the tables and put Hegel on trial. More specifically, given that much of Hegel's (...) account is directed against the Ashanti, I will use what is known about them and especially what Hegel either did know or should have known, to take him before the court of the Ashanti, where the use of evidence can be interrogated. The results of this examination render all the more pressing the need to give an account of how Hegel applied his system of justice to Africa, which I attempt to do in the second part of the paper. In the third part, I return to the interpretation of Hegel's statement about Africa as unhistorical and, having restored it to its context in Hegel's system, show its. (shrink)

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610, that the heightened remedies available under the Elder Abuse Act, Cal. Welf. & Inst. Code, §§ 15657,15657.2, apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: section 15657, which provides for enhanced remedies for reckless neglect; and section 15657.2, which limits recovery for actions based on “professional negligence.” The court (...) held that reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility, after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death. (shrink)