Deduction and Justification in the Law. The Role of Legal Terms and Concepts

Abstract. Legal terms, such as “ownership,”“contract,”“validity,”“negligence,” are used as middle terms in legal deduction. The paper distinguishes two problems regarding this use. One is the logical function of terms for deduction within a normative system. Specific problems dealt with in this connection are meaning, definition, and economy of expression. The other problem connected with middle terms is the “moulding” and possible manipulation of the meaning of legal terms, for arriving at desired conclusions in a given scheme of inference. It is indicated how the moulding of contested legal concepts, if not restricted, will obscure the ratio of legal rules. This problem is relevant, inter alia, to arguments ex analogia in the law.     

论刑法中兜底条款的明确性

刑法中的兜底条款是立法者为堵塞、拦截行为人逃漏法网而在列举相关具体行为方式、方法或手段之后所作的概括性规定。兜底条款是否具有明确性是一个颇具争议的理论问题,考察其生成机理与结构特征就会发现,兜底条款的设置不仅在所难免,而且可以保障刑法的社会适应性、稳定性和简洁性。在同一犯罪构成中,列举性规定所描述的行为和可涵摄于兜底条款中的行为具有同质性,依据列举性规定可以推断兜底条款的大致含义,并预测行为的法律效果。所以,兜底条款的内容和适用范围并非漫无边际的,符合"最大可能的明确性"要求。为了减小兜底条款对明确性原则造成的冲击,需要审慎采用兜底条款,将有些兜底条款所涵摄的行为单独设罪或划归行政法进行规制。     

Victims' Responses to traumatic life events: An unjust world or an uncaring world?

Although the psychological literature has generally equated deservingness and justice, victims' responses suggest the need to disentangle the two concepts. Victims usually feel their traumatic experience was undeserved but typically do not consider the outcome in terms of justice or fairness. Rather, their feelings about not deserving the victimization derive from a second type of moral judgment involving caring rather than justice. These two orientations are discussed in light of recent developments in work on moral reasoning. A framework for understanding the trauma of victimization is presented; the shattering of assumptions related to a caring world—in which people are protected from harm—is highlighted in this model. The crucialrole of social support and specific cognitive strategies used by victims in the aftermath of their victimization are discussed in terms of survivors' efforts to rebuild their assumptions about a caring world. Although concerns about justice are less common among survivors, an effort is made to discuss when these isues are most apt to arise.     

The Limits of the Economic Analysis of Regulation: An Empirical Case and a Case for Empiricism*

Can the tools of the economic analysis of law be used to identify the optimal level of stringency in regulatory standards? Data on the costs of nursing home regulatory compliance suggest that in this domain such models could only produce wildly false estimates of the optimal level of stringency. Among the reasons for this are that: (a) actual costs of compliance explain only 19 percent of the variance in the subjectively expected costs that should inform rational choices; and (b) while there is a powerful effect of expected cost on compliance disaggregated by standard, this is not a monotonic increasing effect but a parabolic relationship. The reason for the finding that almost half the nursing homes lie on the wrong side of the turning point of this parabola is that these homes tend to be run by managers who are “disengagers” from the regulatory culture. Their behavior is not to be understood in terms of rational game playing but in terms of dropping out of the regulatory game. The disengagers are in the regulatory system but not of it and certainly not economically calculative about it.     

格式条款内容规制的规范体系

在规制合同内容的规范群内部存在着体系化的分工。格式条款内容规制规范不能适用于核心给付条款。其根本原因在于,市场机制通常虽不能作用于附随条款但却能作用于核心给付条款。这并不意味着核心给付条款就不受法律秩序的规制。对于不当合同的介入,通常需要合意度低下和均衡度不足两个要件的合力。合同法第40条的意义,在于将所有利用格式条款之情形的合意推定为程度较低的合意。如此一来,在对格式条款作内容规制时,便不再需要举证合意度的低下。     

Creating Legal Terms: A Linguistic Perspective

Legal terms have a special status at the interface between language and law. Adopting the general framework developed by Jackendoff and the concepts competence and performance as developed by Chomsky, it is shown that legal terms cannot be fully accounted for unless we set up a category of abstract objects. This idea corresponds largely to the classical view of terminology, which has been confronted with some challenges recently. It is shown that for legal terms, arguments against abstract objects are not pertinent. As abstract objects are not natural, it is important to consider their creation. Two types of creation are distinguished and illustrated, one for new concepts and one for terms corresponding to existing general language concepts. In the latter case, it is important for the abstract object to remain close enough to the intuitive prototype. At the same time, legal terms as abstract objects are shown to have a natural place in relation to legal theory.     

Economic analysis of standard form contracts: the monopoly case

The terms of standard form contracts are rarely known to consumers. Still, it is often argued that few consumers who read and understand the contract can assure that it does not include sub-optimal terms. According to this argument, if the proportion of informed consumers is sufficiently high, they can secure an optimal set of contract terms to the benefit of all other consumers. This paper shows that when suppliers can adjust the content of the form contract, the few reading consumers cannot correct the market failure. In fact, unless all consumers read and understand the form contract, a monopoly is always encouraged to offer sub-optimal terms, i.e., terms that benefit her but at a higher cost to the consumers.      

Recovering from the Effects of Domestic Violence: Implications for Welfare Reform Policy

This article highlights the importance of understanding how the impact of domestic violence renders participation in welfare‐to‐work programs highly problematic since the symptoms of post‐traumatic stress disorder (a not uncommon outcome of domestic violence experience) can undermine the victim's best efforts to benefit from training and return to work programs. A short history of PTSD is provided with the cautionary note that definitions of PTSD remain in flux. Sub‐categories of PTSD, such as Battered Women's Syndrome, are also reviewed. Recovery from PTSD is not described in psychotherapeutic terms, but in rehabilitative terms with an emphasis on those recovery processes which facilitate restoration of psychological and functional capacities, leading to participation in welfare‐to‐work or retraining programs with labor market participation as the goal.     

Canteen Banter or Racism: is there a Relationship between Oslo Police's Use of Derogatory Terms and their Attitudes and Conduct towards Ethnic Minorities?

This paper explores the possible connection between the Oslo police's use of derogatory terms about the ethnic minority population, and actual police attitudes and conduct. The article's background is a research project focusing on the relationship between the police and Oslo's ethnic minorities. Qualitative methods were applied, including observations amongst rank‐and‐file officers in three police stations, interviews with 20 police officers of different rank and gender, as well as interviews with three samples of basically ethnic minority men. The background for the police's use of derogatory terms about the ethnic minority population is discussed, and possible institutional support is explored. The canteen language and attitudes towards ethnic minorities are seen in relationship to police experiences with them. Incidents observed during the field‐work are applied in the discussion of whether the police conduct may be influenced by their language and thus lead to unjustifiable targeting of ethnic minorities for stop and search. The observations of police conduct are perceived in the light of ethnic minority informants' police experiences. Although a direct connection between derogatory terms and actual conduct was not confirmed through the observations, the ethnic minority informant interviews suggest that such a connection may not be discarded and such language must therefore be avoided as it may increase the social distance between the police and ethnic minorities.     

Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

Knowledge of Legal Terminology and Court Proceedings in Adults with Developmental Disabilities

This research compared 40 adults with mild developmental disabilities (DD) and 40 nondelayed adults (ND) in terms of knowledge of legal terms and court proceedings. For all of the 34 terms studied, with the exception of police officer there were significant differences between the DD and ND groups with respect to degree of conceptual understanding of terms. Results indicate that all but 6 terms assessed (adjourn, allegation, crown attorney, defendant, prosecute, and court reporter) were well-defined by 85% or more of ND participants. In contrast, only 8 of the terms (police officer, lawyer, jail, court, lie, truth, judge, and witness) were reasonably conceptually understood by at least 75% of DD participants. Reported familiarity with terms in DD participants is not a reliable indicator of actual familiarity with terms. Results are discussed with respect to the need for education of DD individuals and legal professionals to support participation and fair treatment of DD individuals in legal situations.     

Social License and Environmental Protection: Why Businesses Go Beyond Compliance

This article examines the concept of the corporate "social license," which governs the extent to which a corporation is constrained to meet societal expectations and avoid activities that societies (or influential elements within them) deem unacceptable, whether or not those expectations are embodied in law. It examines the social license empirically, as it relates to one social problem–environmental protection–and as it relates to one particular industry: pulp and paper manufacturing. It shows try the social license is important, the circumstances in which it may encourage companies to go "beyond compliance" with regulation, how its terms are monitored and enforced, and how it interacts with what we term the regulatory and economic licenses. Overall, this research demonstrates that corporate environmental behavior cannot be explained purely in terms of instrumental threats and moral obligations to comply with the law, and that the increasing incidence of "beyond compliance" corporate behavior can be better explained in terms of the interplay between social pressures and economic constraints.     

Co-ownership of patents under German law

Legal context: Co-ownership of patents is a specific form of entitlement toa patent. Thus, it stands in the legal context of the questionof who may benefit from an invention and a patent, but alsoof who has to bear the costs of it. Parties to a co-ownershipare free to determine the terms of their co-ownership. If theydo not enter into specific agreements, the statutory rules—inGermany the rules of the community of part owners—apply. Key points: The article describes the most important aspects where Germanstatutory rules do not usually address the needs of the co-owners. Practical significance: Parties are advised to agree on these points before disputesarise. In particular, they should agree on the terms of thedefence, enforcement, and exploitation of their patent. Thisapplies especially against the background of the increasingnumber and importance of joint research and development projectsand patents resulting from them.     

Law talk: Juveniles' understanding of legal language

This article reports and discusses the findings of a study conducted at the pretrial stage in the Winnipeg juvenile court (Province of Manitoba, Canada) to determine: (1) what legal words or phrases commonly used in courtroom hearings juveniles understand; (2) whether there is a relationship between juveniles' understanding and sense of justice (fairness); (3) whether judges, lawyers, and probation officers believe that legal language affects a juvenile's understanding of the courtroom hearing; (4) what legal terms or phrases these key actors see as most important for the juvenile to understand; and (5) whether there is a relationship between what juveniles understand and what key actors see as the most important legal terms or phrases that a juvenile needs to understand. Juveniles' understanding is moderate and is confined to procedural terms. A strong relationship does not exist between what juveniles understand and the terms that key actors view as needing to be understood.     

Public security versus privacy in technology law: A balancing act?

Technology invades a person's privacy but this has been justified in law on public security grounds. The more technology advances, the more difficult it is to control its privacy intrusive use. This paper argues that there are a number of difficulties posed by such use concerning the respect of one's privacy. The meaning of ‘public security’ is not entirely clear and there are various laws which authorise the invasion of privacy for public security reasons. Technology is developing at such a fast pace and in a more diffused manner without taking on board its privacy implications whilst technological privacy enhancement mechanisms are not catching up. The law of privacy is not sufficiently elaborate and is slow in coming to terms to deal with these novel situations posed by rapid technological advances. The paper thus develops universally legally binding minimum core principles that could be applied indiscriminately to all privacy intrusive technology.     

The fourth in a series of reports by David Davies analysing the experiences of those involved in a computer disaster

One of the most fascinating of human traits is their blase approach to possible disaster. Serious road accidents are something that happens to someone else, so drivers carry on taking appalling risks at high speed. In corporate terms management takes a similar approach to disaster, and computer disasters are no exception. “It won't happen to us” or “we'll muddle through somehow” are common excuses for the absence of a disaster recovery plan. Psychologists tell us that this is because we cannot come to terms with something we have not previously experienced: we simply cannot imagine the experience, therefore it has no reality as something that could affect us.In this series I am relaying the experiences of those people who have been involved in computer disasters, the lessons they have learned and the effects of the disaster on their company and on their own lives. If you are one of the great majority without a workable recovery plan, remember as you read: tomorrow this could be you!     

Students,academic institutions and contracts — a ticking time bomb?

Traditionally the courts have been reluctant to trespass too far on the sanctity of academic freedom, and have certainly not wished to be seen as final arbiters of academic decisions. It is doubtful whether anything in the fast changing world of higher education has yet changed enough to modify such reluctance. However, when the student/college relationship is viewed through the prism of 'service provision' very different conclusions may be reached. It seems very hard to deny that the agreement between an academic institution and a student is a contract, and (most obviously) a contract for the provision of educational services. If the advertised services are not provided, or are provided inadequately or incompletely then an action for breach of contract on behalf of the student(s) affected may lie. Moreover any generalised disclaimer on behalf of the academic institution may (now) fall foul of unfair contract terms legislation. In Education and the Law Vol 11 No. 2, 1999, Tim Birtwistle and Melissa Askew began the process of exploring such issues. This article will endeavour to examine in greater depth matters such as the formation of the student/college contract; claims for breach of contract and unfair contract terms.     

信用证非单据条款研究

从分析信用证上面的条款着手,在不损害信用证独特性质的前提下,利用合同法的理论,通过将体现开证行和受益人合意的、单据性要求的条款称为信用证“单据条款”来界定其反面——信用证非单据性条款;分析了相关的法律对于信用证非单据性条款的规定,以厘清法律对于这种条款的意见;通过比较分析两个相似的信用证非单据条款判决来分析司法实务界的看法,指出法院在处理非单据条款的时候会突破UCP500第13条(C)的规定而适用合同法。最后对如何处理这种条款提出了建议。     

The Cocoon of Power: Democratic Implications of Interinstitutional Agreements

Abstract:  This article assesses Interinstitutional Agreements (IIAs) in terms of democratic theory. It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency.