1,720,984 research outputs found
Policy in private law: an admission of failure
No full textThe role of policy in Private law is explained by focusing primarily on law of negligence. The article also discusses the distinction between policy and principle in the context of law. 'Principle' refers to the rules found in case law and 'policy' to the reasons for or against those rules. Policy and principle are contrasted in context of the law. Every law claims to be normative and imposes obligations due to which legal academics present them as justified. Justification of Private law by its creators is questioned.<br/
Agreements, mistakes, and contract formation: a comparative theoretical analysis
No full textThis article explores the nature of contract formation. It does so by examining the will theory and the declaration theory as accounts of agreement. The article concludes that neither theory is adequate either as a description of the operation of the law in practice or, more fundamentally, as an explanation of agreement. Instead, the article recommends an alternative account - 'the objective will theory' - that both adequately explains agreement and captures the operation of the law
Corrective justice and personal responsibility in tort law
No full textIt is sometimes argued that tort law is, or ought to be understood as, a system of personal responsibility and corrective justice. Moreover, it is often assumed that these notions are identical, or at least compatible. In fact, however, personal responsibility and corrective justice are very different concepts and they produce very different pictures of the law. The article demonstrates this by comparing the way in which personal responsibility and corrective justice deal with three important problems: the presence of non-subjective standards in the law, the place of liability insurance, and the relationship between law and politics
Transferred malice in tort law?
No full textShould the doctrine of transferred malice operate in the law of tort? Although there has been little written on this topic in England and Wales, it appears generally to have been accepted by academic commentators that the answer to this question is in the affirmative. Consequently, when the High Court in Bici v Ministry of Defence applied the doctrine to the tort of battery, most regarded this as unremarkable. This paper, however, argues that this position is mistaken: that the doctrine of transferred malice has, and can have, no place in the law of tort. The paper also examines the nature of intention operative in the law of trespass and its relationship with recklessness.<br/
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Law's reality ::a philosophy of law /
No full text"Allan Beever lays the foundation for a timely philosophical and empirical study of the nature of law with a detailed examination of the structure of evolving law through declaratory speech acts. This engaging book demonstrates both how law itself is achieved and also its ability to generate rights, duties, obligations, permissions and powers. Structured into three distinct parts - the philosophy of law and jurisprudence, the structure of the social word and the ontology of law, and the reconstruction of the philosophy of law - the author provides insight into law as a human institution and reveals that central debates are often based on misunderstandings of interpretation and intentionality. Inspired by the philosophy of John Searle alongside other well-respected legal theorists, the author also analyses both sides of the mainstream jurisprudential divide in its current state, in particular the theory of legal positivism. Examining all aspects of law and answering the important question of 'What is Law?', this book will be an invaluable resource for academics and advanced students in law schools and philosophy departments"-
Samoa Law Reform and Recognition of Fa’atama: A Talanoa Approach
No full textThe thesis attempts to address significant gaps in current knowledge on law reform, gender responsive law making and gender discriminatory practices in the legally pluralistic nations of the Pacific, more specifically, in Samoa, where the majority of fa’atama reside. This thesis adopts a critical talanoa approach to understanding the gender discriminatory practices embedded in Samoa customs (tu ma aga), traditions and law, from the perspective and lived experience of fa’atama, as they navigate their journeys, to enable the process of their recognition, through the proposed legislative and non-legislative reform of Samoa customs, traditions, and laws.
This is a thesis by manuscripts and is based on four research papers (Chapters 2-5) and one empirical research paper (Chapter 6). This thesis is presented as a successive progression of research in a series of seven chapters (Table 1). Each chapter, while related, function as standalone papers. A preface is provided at the start of each chapter, to demonstrate the sequential and cohesive progression of the research, most of which have been submitted to targeted journals and are papers under review. Chapters 1 (Introduction) and 2 (Literature Review) provide the justification for the research, positionality of the researcher, while the reviewed literature provides a critical lens to the laws, customs, traditions, and gender norms impacting the recognition of fa’atama in Samoa. The critical gaps of understanding from the reviewed literature, led to the framing of key research questions exploring the factors, tensions and challenges at the interface between laws, customs, and gender discriminatory practices which cross-cuts across all papers of the thesis. Chapter 3 explores the talanoa methodology adopted in the empirical chapter and three of the four research papers.
Paper 1 (Chapter 2), is a comprehensive review of relevant literature, from books, laws, court judgments to research papers, dated 1970-2020, resulting in the emergence of core themes, based on the critical gaps presented in the review: the language of sexuality and gender discourse in Samoa; the sociocultural construction of fa’atama in the context of femininity and masculinity in Samoa’s customary and legal context; the role of gender equity and gender status in Samoa law reform from historical origins to the modern day context; and lastly, an examination of gender discriminatory practices in the context of Samoa fa’atama and SOGIEC recognition in the criminal and family law context of Samoa. This review then proposes ways to reimagine some of the legislative and non-legislative challenges ahead for fa’atama and SOGIE members who do not fit into the cultural gender binary construct embedded in Samoa’s Gender Framework, or the recognized legal and sex categories of Samoa.
Building on Paper 1, talanoa methodology, law reform processes at customary and national level and the theory on the customary rule of recognition are explored in Papers 1-4 (Chapters 2-6). Finally, the purpose of the final chapter (Chapter 7) is to bring together all the findings and recommendations, research limitations, the implications for the wider fa’atama and SOGIEC communities. Any supplementary information not provided in each thesis chapter will be included in the Appendix.
The thesis used a critical talanoa methodological approach, underpinned by the vā (a Pasifika relational approach) reflected in the multiple, multi-dimensional diversity, dignity, and truths. The focus group talanoa and the face to face (semi structured) interview talanoa were the main methods of enquiry adopted for the study. Participants (respondents) in Auckland, New Zealand and Apia, Samoa were carefully selected by the principal fa’atama advisor engaged for the study.
The thematic analysis from the talanoa data found that both international fa’atama (i.e., fa’atama residing outside Samoa) and Samoa, are generally not accepted as fa’atama by family, church and the wider community (village); that fa’atama experience gender discrimination in their families, village and church community more in Samoa compared to fa’atama outside Samoa; that fa’atama are not free to express themselves in how they dress and who they choose to love; that fa’atama marriage and adoption of children is currently illegal in Samoa; that fa’atama are vastly under-represented in matai leadership and thus, are not actively involved in significant decisions impacting their families, churches, village community and more importantly, law reform. Consequently, this infringed upon their access to education, health, and law, impacting their legal status and more significantly, their recognition as a whole, which were far more urgent than is currently recognised by the community and government. This is fundamental to individual empowerment and dignity in Pacific contexts, in the absence of finance, employment opportunities, cultural status, and class power. The urgency for recognition as a way to combat gender discriminatory practices was indeed pressing for both fa’atama respondents in Samoa and New Zealand. Comparatively, fa’afafine, unlike fa’atama, were able to enjoy secure recognition in local laws, not based on need, but because customs and tradition favoured men for leadership roles as a whole.
The overarching aim of this research is to critically assess and understand the key challenges to proposed reform of the status quo, which is the lack of collective recognition and acceptance of fa’atama in village governance, local customs, and laws. While identifying the key risks in the context of how they might operate in practice, I examine the feasibility of such proposals being adopted, wholly or in part, by the current government. More importantly, proposals with an emphasis to review and reform the current village governance practices, structures, institutions, and laws of Samoa. In this way, it is intended that an original contribution to the study of customs and gender responsive law making can be made in Samoa and the wider Pacific region
Would the Proposed Reforms Affecting Ahu Whenua Trusts Have Impeded Hapū in the Development of Their Lands? A Ngāti Awa Perspective
No full textThis thesis provides a critical examination, from the perspective of three hapū (subtribes) of the Ngāti Awa iwi (tribe) from Te Moananui-a-Toi (the Bay of Plenty), in Te Ika a Maui (the North Island) in Aotearoa (New Zealand), of how changes to important aspects of ahu whenua trusts under Te Ture Whenua Māori Bill 2016 might have impeded hapū in achieving their land utilisation objectives. This form of trust, established under Te Ture Whenua Māori Act 1993, is the principal vehicle for Māori land management involving hundreds of thousands of hectares valued in billions of dollars on behalf of hundreds of thousands of owners, their whānau (family) and hapū. These trusts are sometimes of more significance to tribal communities than are post settlement governance entities; so expansive are their economic, social, cultural and political footprints.
The radical proposals for change, contained in the now defunct Te Ture Whenua Māori Bill 2016 are examined, as they concerned core elements of the functioning of ahu whenua trusts, given what might have been their potential impacts on the management of Māori land. Those functions include the establishment, review and termination of such trusts and their operation in the normal course of business. The role of trustees and beneficial owners, their rights and obligations and their relationships with each other, are also considered. The overarching aim of this research is to assess key aspects of the proposed changes against the status quo and identify potential risks in the context of how they might operate in practice, should such proposals be revived, wholly or in part, by a future government. More importantly, proposals to amend the current legislation as an alternative approach are also explored with an emphasis on devolving a significant part of the existing transactional jurisdiction of the Māori Land Court from judicial to administrative oversight. In this way, it is intended that an original contribution to the study of Māori land can be made
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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