Though the overall numbers of women judges remain small, higher proportions of women have been appointed to many lower courts in common law, and particularly in civil law, countries. This paper investigates whether the experiences of judging and judicial work differ among women and men magistrates in Australia’s lower courts. The particular focus is satisfaction with their work as judges. In so doing, it helps build up a picture of the extent of the gendered nature of the judiciary (...) as an occupation. Measures of overall job satisfaction identify few gender differences; more refined measures highlight areas of divergence between men and women magistrates, suggesting gendered experiences of judicial work which result from particular characteristics of the occupation, as presently constituted, rather than the nature of judging itself. (shrink)

Appellate Court Modifications Extraction consists of, given an Appellate Court decision, identifying the proposed modifications by the upper Court of the lower Court judge’s decision. In this work, we propose a system to extract Appellate Court Modifications for Portuguese. Information extraction for legal texts has been previously addressed using different techniques and for several languages. Our proposal differs from previous work in two ways: our corpus is composed of Brazilian Appellate Court decisions, (...) in which we look for a set of modifications provided by the Court; and to automatically extract the modifications, we use a traditional Machine Learning approach and a Deep Learning approach, both as alternative solutions and as a combined solution. We tackle the Appellate Court Modifications Extraction task, experimenting with a wide variety of methods. In order to train and evaluate the system, we have built the KauaneJunior corpus, using public data disclosed by the Appellate State Court of Rio de Janeiro jurisprudence database. Our best method, which is a Bidirectional Long Short-Term Memory network combined with Conditional Random Fields, obtained an \ score of 94.79%. (shrink)

I clarify Kant's classification of duties and criticize the apocryphal tradition that, according to Kant, perfect duties trump imperfect duties. I then use Kant's view to argue that judges who believe that an action is immoral and should be illegal need not set aside their beliefs in order to comply with binding precedents that permit the action. The same view of morality that causes some people to oppose certain actions, including abortion, requires lower–court judges to comply with binding (...) precedents. Therefore, someone's opposition to legal abortion, by itself, does not justify opposing that person's nomination to a lower court. (shrink)

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative (...) authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities. (shrink)

As a conscientious moral agent, a judge in a court of law often finds herself in a difficult position. She is confident that the law requires a certain result in the case before her, but she is at least as confident that this legally required result is unjust or otherwise morally objectionable. Consider some examples of cases in which a reasonable judge might consider herself to be in this position: ▪ The law of landlord and tenant can (...) require a judge to evict an impoverished, elderly widow from her apartment for missing rent payments.1 ▪ A student in a poor school district sues his state for providing a much lower caliber of education than students receive in wealthier districts. Binding legal precedent requires the judge to dismiss the student’s lawsuit. ▪ Binding precedents construing the Fourth Amendment require judges to exclude evidence obtained without a search warrant. As a result, a child molester is acquitted, and, predictably, strikes again. (shrink)

Artificial intelligence plays an increasingly important role in legal disputes, influencing not only the reality outside the court but also the judicial decision-making process itself. While it is clear why judges may generally benefit from technology as a tool for reducing effort costs or increasing accuracy, the presence of technology in the judicial process may also affect the public perception of the courts. In particular, if individuals are averse to adjudication that involves a high degree of automation, particularly given (...) fairness concerns, then judicial technology may yield lower benefits than expected. However, the degree of aversion may well depend on how technology is used, i.e., on the timing and strength of judicial reliance on algorithms. Using an exploratory survey, we investigate whether the stage in which judges turn to algorithms for assistance matters for individual beliefs about the fairness of case outcomes. Specifically, we elicit beliefs about the use of algorithms in four different stages of adjudication: (i) information acquisition, (ii) information analysis, (iii) decision selection, and (iv) decision implementation. Our analysis indicates that individuals generally perceive the use of algorithms as fairer in the information acquisition stage than in other stages. However, individuals with a legal profession also perceive automation in the decision implementation stage as less fair compared to other individuals. Our findings, hence, suggest that individuals do care about how and when algorithms are used in the courts. (shrink)

Late last year the English Court of Appeal confirmed a lower court's ruling that doctors could impose an operation to separate recently born conjoined twins, overriding the refusal of consent of their parents. The doctors believed the operation would probably save one of the babies at the cost of killing the other, while not operating would highly probably be followed by the death of both twins within months of their birth. The parents, said to be devout Roman (...) Catholics, believed that it was absolutely wrong to kill one of their babies, even to save the life of the other.Undoubtedly many people, the writer included, would agree with the English courts that the “least worst” option was to separate the twins and save one at the cost of killing the other. But surely many fewer people would have imposed their own resolution of this acute moral dilemma upon parents who conscientiously chose the other limb of the dilemma, refusing to kill one baby even in order to save the other. Were the English judges right, then, to take away the parents' normal right and duty to make health care decisions on behalf of their children and instead impose their own answer to what they admitted to be a terrible dilemma? Describing the two alternatives in terms of choosing between the lesser of two evils on the one hand, and the obligation not to kill on the other, Lord Justice Ward declared, according to The Times law report,1 that: “Parents who were placed on the horns of such a terrible dilemma simply had to choose the lesser of their inevitable loss [sic]”. But that surely is to beg the moral question in favour of the judges' preferred answer to this moral dilemma. The fact is that there are—as …. (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)

The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.

The paper analyses the problem of workload quotas for district court judges in relation to the standard statutory work time duration. The problem is set against the general tendency of increase in the number of cases brought before courts each year. District courts as the courts of first instance are faced with an ever growing flow of cases. With regard to civil cases, the numbers are increasing especially in the field of the law of obligations (disputes in relation to (...) sale, loan, credit, consumer credit, lease contracts, as well as contracts for the provision of services, etc.). As far as criminal cases are concerned, the numbers are increasing especially in the fields of robbery, theft, in particular car theft, disturbance of public order and other crimes. In these circumstances, it is extremely important to conduct the analysis of the activity of courts in order to obtain a picture of the current situation with regard to the workload of courts and judges. District courts deserve special attention. Uneven distribution of workload among courts and judges is often the reason for the increase of the number of cases where a final decision (judgement) is reached later than 6 months after the start of proceedings. This was pointed out in the Overview of Activities of the Lithuanian Courts and their Self-Governance Institutions (2009–2010), as well as in the report of the National Courts Administration (2010). Those documents underline the importance to analyse the workload of district court judges for the purposes of optimising work organisation, setting the number of judges, distribution of resources, evaluation of judges’ activity, etc. The said analysis is crucial in order to avoid exceeding working time quotas and excessive workload of judges. At present, the workload of district court judges is calculated in accordance with the regulation adopted by the Courts Council in 2004 (as amended in 2005) and it reflects the number of standard cases (civil, criminal cases and cases of administrative offences) as well as other types of procedural documents dealt with by a judge within a period of one month. However, there are no quotas set for judge’s workload with regard to the duration of the statutory work time. The quotas for separate procedural stages (preparation for hearings, hearings, adoption of decision (judgement), other procedural actions that a judge performs while administering justice) are inexistent. The calculation does not take into account whether those standard cases are heard by a single judge or by a panel of judges, the complexity of a particular case is neither reflected. Establishing quotas for district court judges and other court clerks (judge assistants, secretaries, etc.) should consist of legal, organisational-procedural and technical-economical activity. The Ministry of Justice of the Republic of Lithuania, the National Courts Administration, the Courts Council as well as chairmen and experienced judges of district courts should play an active part in the process of establishing quotas. A special role should be assumed by the General Assembly of Judges. (shrink)

This is a case that should go to the European Court of Human Rights. A decent, senior qualified family doctor was accused by his mentally ill daughter of sex abuse. Without real evidence except for what the girl told another mentally ill patient at a psychiatric hospital she stayed at for several years, and wit just two witnesses, one a younger child wo saw none of the accused offences, and the other parent, struck off the General Medical Council Register (...) for drunk driving more than once, the case was fitted up by those who are rampantly seeking to raise statistical numbers for child sex abuse offences by high level persons- a bizarre situation and a travesty against tis family doctor's human rights, because a judge can use his 'discretion' to send a much needed family doctor to 18 years in jail. The International Community should scrutinize the United Kingdom's Criminal Justice System. (shrink)

There is considerable disagreement as to whether any gender differences on the bench are symbolic, substantive, or both. This paper, based on never-before published surveys and personal interviews conducted in the early 1980s, contributes to that discussion by describing what women appointed to the federal bench by President Carter between 1976 and 1980 had to say about gender differences in their first years in office. I conclude that these early experiences and comments by women on the bench are still relevant (...) today and presage much of the research on judicial gender which has followed. (shrink)

By lopsided majorities, the U.S. Supreme Court, in a series of cases, persistently commanded the lower courts to condition the admission of proffered expert testimony on the demonstrated validity of the proponents’ claims of expertise. In at least one broad area–the so-called forensic sciences–the courts below have largely evaded the Supreme Court's holdings. This paper aims to try to explain this massive defiance by the lower courts in terms of social epistemology.

By lopsided majorities, the U.S. Supreme Court, in a series of cases, persistently commanded the lower courts to condition the admission of proffered expert testimony on the demonstrated validity of the proponents’ claims of expertise. In at least one broad area – the so-called forensic sciences – the courts below have largely evaded the Supreme Court's holdings. This paper aims to try to explain this massive defiance by the lower courts in terms of social epistemology.

I will take it that general intelligence is intelligence of the kind that a typical human being—Fred, say—manifests in his role as a cognitive agent, that is, as an acquirer, receiver and circulator of knowledge in his cognitive economy. Framed in these terms, the word “general” underserves our ends. Hereafter our questions will bear upon the all-purpose intelligence of beings like Fred. Frederika appears as Fred’s AI-counterpart, not as a fully programmed and engineered being, but as a presently unrealized theoretical (...) construct. Our basic question is whether it is in principle possible to equip Frederika to do what Fred does as an all-purpose participant in his own cognitive economy. Can she achieve a sufficiency of relevant similarity to him to allow us to say that she herself can do what Fred can do, perhaps even better? One of the things that Fred can do—or at least could learn from experience to do—is discharge the duties of an Appeals Court judge. As set down in the ancient doctrine of lex non scripta, Fred must be able to detect, understand and correctly apply certain tacit and implicit rules of law which defy express propositional formulation and linguistic articulation. Fred has an even more widespread capacity for the epistemically tacit and implicit, clearly one of his most cost-saving kinds of intelligence. Indeed, most by far of what Fred will ever know he will know tacitly and implicitly. So we must ask: how tightly bound to the peculiarities of Fred’s cognitive enablement conditions is the character of the intelligence that he manifests? And how far down Fred’s causal make-up does intelligence actually go? (shrink)

The High Court is taking an increasingly important role in shaping the contours of democracy in Australia. In deciding fundamental democratic questions, does the Court pursue a consistent and overarching democratic vision? Or are its decisions essentially constrained by institutional and practical limitations? Judging Democracy, first published in 2000, addresses this question by examining the Court's recent decisions on human rights, citizenship, native title and separation of powers. It represents the first major political and legal examination of (...) the Court's new jurisprudence and the way it is influencing democracy and the institutions of governance in Australia. A foreword to the book has been written by the former Chief Justice of the High Court, Sir Anthony Mason. (shrink)

Journal of Social Philosophy, Volume 52, Issue 4, Page 459-472, Winter 2021.

Court conciliation conducted by judges in Chinese people’s courts has been playing a vital role in resolving civil disputes. When it heaps praises and compliments, it also faces severe criticisms such as pressing parties to settle due to judges’ over-engagement. To date, except for mere criticisms from the legal literature, few efforts have been made to reveal how judges get engaged linguistically in conciliation and whether their engagement exceeds the limit in each phase of court conciliation. This paper, (...) taking the engagement system of the appraisal framework and the exchange structure model as the theoretical basis, aims to analyze the features of judges’ engagement and the underlying forces that influence their engagement. Data-analysis shows that for court conciliation conducted in court, judges often employ dialogically contractive resources in uni-directional information exchange structures to warrant their engagement. Under the co-influence of the driving and curbing forces, judges are often “dancing with shackles” in court conciliation. (shrink)

This article takes up Smart’s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or “judge-oriented” practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct legal (...) method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law’s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart’s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law. (shrink)

This paper’s aim is to promote greater interest in courtroom practices of minute-taking—the preparation of written documents that constitute a record of what was said and done in the courtroom during a case hearing, very often based on a judge’s dictation of rephrased questioned person’s statements to a clerk who records them. This aim is achieved through discussion ultimately focused on the distinguishable aspects of minute-taking, its possible underlying mechanisms, and further consequences, followed by some remarks concerning the (...) class='Hi'>judge–clerk relationship outside the scope of minute-taking and more direct discussion of clerks themselves. The discussions and analyses presented here are empirically-grounded, forming a side result of a larger research project conducted in a Polish lower court that combined observations of case hearings with witness interviews. Despite their inadvertent origin, the investigations presented here demonstrate the complexity and multifaceted nature of minute-taking to a greater extent than previous relevant studies have revealed. While minute-taking has not been neglected entirely in legal research, there remain many questions to be addressed. This paper suggests some of these questions as well as potential directions for future research on minute-taking through discussion of how the identified aspects of minute-taking can be utilized and which theoretical frameworks may be applicable. Although the paper is a result of empirical research conducted in Poland, its aims are relevant outside the Polish context, particularly in other continental European countries where minutes are also taken from case hearings. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Amicus BriefMartha C. Nussbaumii. summary of the argumentThis brief argues that the law requires reformation to protect our modern scientific and philosophical understanding that many animals can live their own meaningful lives and that the Court should reform the law in this case.1 Modern science demonstrates that elephants are complex beings that can form a conception of the self, as observed by Judge Fahey, form strong social (...) and emotional bonds among themselves and others, and that the Zoo's conduct harms Happy in both physical and intangible ways.Furthermore, this brief argues that the lower courts in Lavery I and II applied the wrong philosophical framework to the question of whether certain non-human animals should be considered legal persons. Instead of animal rights being based on the capacity to engage in a social contract and to bear legal duties, the proper framework for animal rights is the capabilities approach, which asks how the law can help animals like Happy not only live but thrive. Accordingly, this brief explains the importance of this appeal, the Court's opportunity to reform [End Page 15] the field of animal law, and the potential to release Happy from a life of captivity, ensuring she lives the rest of her life in a manner that respects her capabilities.iii. argument1. This Case Matters Because It Is Time to Reform the Law to Protect Our Modern Scientific and Philosophical Understanding That Many Animals Are Capable of Living Their Own Meaningful LivesModern science now recognizes a very important fact about many animals, including elephants. They are not merely biological units that simply need food and a suitable environment to survive and maintain a viable population. Today, scientists view many animals as beings capable of living their own meaningful lives. Early Indian and Roman cultures understood the complexity of animal lives and the implications of this complexity surrounding the humane treatment of animals; public awareness of this fact is widespread today. Almost all ancient Greek and Roman philosophical schools attributed complex forms of cognition and numerous emotions to animals,2 a precursor to our current laws against cruel practices to animals.What philosophy and, more recently, science have understood but the law has not, is that elephants are sentient beings who can feel emotion, foster relationships, create communities, and form a conception of the self. Our current legal system fails to respect species-specific, central capabilities. Although each of the fifty states has animal cruelty laws,3 these laws protect only a small number of animals and fail to constrain, to any meaningful extent, the widespread infliction of suffering. They ban only the intentional, purposeful suffering of some animals, and fail to recognize the impact that captivity, lack of relationships, and solitude cause a creature like Happy.This Court has the opportunity to create legal precedent that provides these living creatures the legal right to thrive and survive in ways that coincide with their specific capabilities, and prevent not only the infliction of physical pain, but emotional and psychological injury as well.2. The Magical Lives of ElephantsElephants are cognitive, complex creatures with distinct societies, emotions, and lives. They form societies that foster the wellbeing of each member, in which their emotions and development from childhood through adulthood are readily apparent.4 A combat staged between humans and elephants in 55 B.C. by the Roman leader Pompey paints a prime example of these complex emotions and connections with other animals, namely humans. Surrounded in the arena, the elephants perceived that they had no hope of escape. According to Pliny, the elephants then "entreated the crowd, trying to win its compassion with indescribable [End Page 16] gestures, bewailing their plight with a sort of lamentation."5 The audience, moved to pity and anger by their plight, rose to curse Pompey—feeling, wrote Cicero, that the elephants had a relation of commonality (societas) with humans.6 However, this connection with humans cannot be substituted for true, similar companionship from other elephants, which Happy has lacked for almost two decades.Elephants' ability to connect with other elephants and animals may be attributable to their long life spans; they are the most... (shrink)

The U.S. Supreme Court recently held that a parody by the rap group 2 Live Crew of Ray Orbison's song "Oh, Pretty Woman" was "fair use" and thus did not infringe the copyright. Although the court insisted that it was not evaluating the quality of the parody, I argue that it does in fact make several aesthetic evaluations and sometimes even seems to praise the content of the parody. I first consider the stated reasons for the claimed refusal (...) of the court to evaluate aesthetic quality. Second, I examine the evaluations which the court in fact does make, at least some of which are clearly aesthetic evaluations. I then argue that aesthetic value judgments are both necessary and possible for determinations of "fair use" for such works as the "Pretty Woman" parody. (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)

This book deals with the theoretical, methodological, and empirical implications of bounded rationality in the operation of institutions. It focuses on decisions made under uncertainty, and presents a reliable strategy of knowledge acquisition for the design and implementation of decision-support systems. Based on the distinction between the inner and outer environment of decisions, the book explores both the cognitive mechanisms at work when actors decide, and the institutional mechanisms existing among and within organizations that make decisions fairly predictable. While a (...) great deal of work has been done on how organizations act as patterns of events for (boundedly) rational decisions, less effort has been devoted to study under which circumstances organizations cease to act as such reliable mechanisms. Through an empirical strategy on open-ended response data from a survey among junior judges, the work pursues two main goals. The first one is to explore the limits of "institutional rationality" of the Spanish lower courts on-call service, an optimal scenario to observe decision-making under uncertainty. The second aim is to achieve a better understanding of the kind of uncertainty under which inexperienced decision-makers work. This entails exploring the demands imposed by problems and the knowledge needed to deal with them, making this book also a study on expertise achievement in institutional environments. This book combines standard multivariate statistical methods with machine learning techniques such as multidimensional scaling and topic models, treating text as data. Doing so, the book contributes to the collaboration between empirical social scientific approaches and the community of scientists that provide the set of tools and methods to make sense of the fastest growing resource of our time: data. (shrink)

Liberal concepts of democracy envision courts as key institutions for the promotion and protection of democratic regimes. Yet social science scholarship suggests that courts are fundamentally constrained in ways that undermine their ability to do so. Recognizing these constraints, this book argues that courts can influence regime instability by affecting inter-elite conflict. They do so in three ways: by helping leaders credibly reveal their rationales for policy choices that may appear to violate legal rules; by encouraging leaders to less frequently (...) make decisions that raise concerns about rule violations; and by encouraging the opposition to accept potential rule violations. Courts promote the prudent use of power in each of these approaches. This book evaluates the implications of this argument using a century of global data tracking judicial politics and democratic survival. (shrink)

People's courts and legal philosophy -- Spotlight on people's courts -- Law -- Judging -- Punishment.

In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is (...) to identify the possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates. (shrink)

Sheikh Halid Sufi, as a Sufi poet, addresses human being as the main subject of his sufist dicourse. He is an important figure of our recent history as he primarily adopted the goal of human perfection and revealed a doctrine of humanity in the school of knowledge. In advance of our current century, when human is seen just in physical respect, he lived as a man of heart who handled human being with an integrated approach within the aspects of matter (...) and spirituality, the world and the hereafter, individual and community, body and soul. In this communiqué, I will discuss Sheikh Halid Effendi’s ontology and his point of view on the place of human being in the realm of existence. He seeks human perfection and wishes people to free themselves of shabby desires and regain their disposition. He recommends people to achieve purity in order to reach the rank of being a mirror to God’s reflections. As a Sufi poet, he attaches importance to carrying out the education of divine journey, wrapping up in mystical ethics, having the identity of wisdom and gaining the aesthetics of love so as to reach the perfection. SUMMARY Sheikh Mehmed Halid was born in 1273/1856 in Sivas. He graduated from Ottoman Junior High School. He attended the 1893 War. In 1880, he started his professional career at a state office. Until 1899, he served in several positions, as assistant judge in Erbaa Lower Court, as Prosecuting Deputy Attorney in Sivas, as Prosecuting Judge assistant in Lower Court and head clerk in Darende, as head clerk in Lower Court in Tonus/Altınyayla, and as prosecuting judge in Kuruçay. He died in 1931 and was buried in Sivas Yukarı Tekke Graveyard. Sufism (tasawwuf) is an education for integrity towards maturity, in a way to prufiy the self from evils of nafs (self) and to reach the love of Allah. This spiritual educational journey is called ‘Seyr-u Suluk’. Sheikh Mehmed Halid completed his Seyr u Suluk as a dervish (student) of murshid (mentor) Kastamonulu Ganizade Mehmed Sadık Baba. Sheikh Mehmed Halid wrote three books called Hilafetnāme, Mektubāt, and Divan. He deals with issues of Sufism (mysticism) in these works. Primarily, his works dwells into the matters of morals, worship, good manners (adab), customary practices, ingenuity, existence, and love. Sheikh Mehmed Halid’s sole attempt is to explain the relationship among Allah, man and universe in an understandable way. According to Sheikh Mehmed Halid’s conception of Sufism, existence is unique and that existence is only Allah. The existence of Allah is absolute while the existence of assets is relative. Things do not exist on their own. Universe is like a mirror. What is reflected in the mirror of universe are the shadows of Allah the Omnipotent. The graces of The Divine are reflected in this mirror. All the things that exist in the universe proves the Self of Allah and his properties. Each of the things in the universe are the words of Allah. The existence of the universe is a result of Allah’s mercy. Man is the fruit of the tree of the Universe.Man is both the embodiment and the reflection of Allah. We want to discuss the position of man in between Allah and the universe with Sheikh Halid’s verses. Perceiving plurality in unity and unity in plurality, Sheikh Mehmed Halid attributes the variety of things and existence in the universe to the Divine beauties of Allah. For those who can comprehend, the plurality/ abundance in existing objects in the universe indicates singularity and uniqueness of Allah. According to Sheikh Halid, Allah is independent from and beyond all the entities that exist in the universe. However, Allah, manifests Himself in the things that he creates and the actions he takes through His divine names and properties. According to Sheikh Halid, each object is a reflection of Allah’s divine properties. Every entity in the universe glorifies Allah with all their existence. For Sheikh Halid, Seyr u Suluk is the journey from weakness to perfection, from substance to meaning, and from things to reality. Considering Seyr u Suluk education as distancing one’s self from other beings, reaching purity of heart, disposing of all signs explains these concepts with pilgrimage metaphor. As a response to those who asks him what he meant by seyr u suluk, he says seyr u suluk is servitude and submission to Allah. In order for Seyr u Suluk to be meaningful, a person should enter the way of a murshid-i kāmil (perfect religious mentor), and should have sincerity, purity (being deprived of all sins) and dhikr. According to Sheikh Halid, someone who is not in trouble is not given a remedy. So as to bother is necessary for remedy to be arisen. Nuisances of the universe are also ephemeral as the universe itself. Therefore, it is unnecessary to bother things that are ephemeral. Because remedy is not available without being mature. According to Sheikh Halid, the procedure of gaining advantage from being mature; getting rid of the ego, feeling the love, being pioneer of the mission, being modest, to attain soul pleasure, escaping from fame, leaving the claim, the glory of salvation, proceeding dhikr, reaching the conquests and escaping from friendship of worldly things. According to Sheikh Halid, being mature is not setting about affiliation ceremony. Asceticism cannot be a show and claim authority. Sincerity is needed on the basis of seyr u suluk education. Asceticism which is an effort of making the religion a specific of Allah is to make intimacy with Allah. Sheikh Halid wants his murids who take part in ṭarīqa (sufī path) to decide on the sincerity. Sincerity is said to be the unique factor that makes sense the membership. Seyr u suluk which begins with being membership of mature murshid, which makes sense with proceeding worship and respecting the sincerity arises by teaching manners to soul. Seyr u suluk is trying to reform the soul. Teaching manners to soul is a challenging and significant task. The most important factor that ensure teaching manners to the soul to be achieved is dhikr. Dhikr practice which makes successful the teaching manner to the soul of seyr u suluk training increases the prudence and foresight of dervish. The unique task that murshid expects from his murid during the membership process is to adjust his soul and parlance to the dhikr of Allah. Dhikr of Allah is a product of fondness. According to Sheikh Halid, one who wants to be remembered in heaven should himself learn to remember Allah. Sheikh Halid gives too much importance to disciplining the tariqa where sufi training takes place. A murid should qualify his murshid whom he intimated to. Followers should gain sufficient advantage from the spiritual atmosphere in the dergāh of their murshid. The murid must be at the service of the murshid who trains him and should obey tariqa manners. Salik who achieves seyr u suluk, who maturates the sufi ethics and who gains sincerity through dihkr of Allah tries to achieve the Gnosis. The intent of being a human is to know Allah. The biggest disaster for human is to come upon unawareness. Sheikh Halid who assumes the the Arifs as sultans of walayah makes a comparison between the Arifs and the Zahids and prefers the Arifs. He thinks that the Zahids pay attention to the appearance, cannot reach the basis and cannot go beyond Allahliness show. Sheikh Halid, who encourages the Zahids to avoid comparing themselves with the Arifs, warns the ones who combat with the Arifs and reminds that Allah proclaims warfare to those who has hostility towards those surrendering themselves to Allah. Sheikh Halid lines up the ways of being mature and having wisdom as godly grace, asceticism, love, the mind of leaving, battle with the self, humility, dikhr and being woeful. Salvation process which Marifetullah will guide is to achieve the love of Allah. Love is the way of achieving the reunion. The reality can just be gained through love. However, gaining the divine love requires to be loved. Because, the way of gaining the divine love is to remove everything except Allah from one’s heart. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

_Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation__ “Chemerinsky... offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.”—David Cole, _New York Review of Books__ Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now (...) a well-accepted mode of constitutional interpretation. Three of the Supreme Court’s nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts. Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know what the “original intent” of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology. (shrink)

Journal of Social Philosophy, EarlyView.

The role of the courts in ‘communicating’ with those affected by their decisions is contentious. Some legal commentators maintain that courts and legislators are able to communicate decisions effectively and that attempts to ‘dumb down’ the law will not make such decisions more accessible to doctors and other professionals. Justice Michael Kirby, on the other hand, seems to share the present author's view that judges could improve their communication of their decisions to a wider audience: ‘In future, it seems inevitable (...) that proceedings [of the High Court] will be broadcast live.Maybe one of the judges will explain the decisions of the court in simple terms as they are handed down… Adaptation to new ways and values is part of the genius of our law, although some of its practitioners need to be dragged kicking and screaming to accomplish the changes’. (shrink)

Journal of Social Philosophy, Volume 52, Issue 4, Page 436-458, Winter 2021.

Name der Zeitschrift: Semiotica Jahrgang: 2017 Heft: 216 Seiten: 399-421.

This article examines whether the gender balance on the High Court of Australia has disrupted the gender regime. In so doing it considers the first lead judgments of the three women judges who sat concurrently on the High Court of Australia between 2009 and early 2015. The High Court has adopted an interesting informal practice of welcoming new judges whereby the newest member authors the lead judgment and their judicial colleagues offer a one-line concurrence. The way in (...) which judicial authority is conferred in these judgments is reminiscent of the space in political spheres where an incumbent has their first opportunity to set out their identity and agenda in a speech free of the noise of dissent or debate; the ‘maiden’ speech. In that space the price an incumbent pays for comity is conformity. This article contends that the first judgment is a useful way of situating a discussion about women judges’ contributions vis-à-vis difference by querying the extent to which the woman judge can ever shake-off her status as the maiden bound to conform for the sake of comity. (shrink)

This article adds to the small but growing body of hate crime legal scholarship in the United Kingdom by examining the meaning of the term ‘hostility’ as prescribed under section 28 of the Crime and Disorder Act 1998. The article highlights the confusion which has occurred within the lower courts as to the distinction between section 28(1)(a), which proscribes ‘demonstrations’ of hostility, and section 28(1)(b), which proscribes offences ‘motivated’ by hostility. In addition to this confusion has been a clear (...) reluctance to apply section 28(1)(a) by some judges in cases where the demonstration of hostility appears to be incidental, as against causal, to the offence committed. The article argues that in order to provide greater clarity in law, the words ‘demonstrates … hostility’ must be interpreted to include, not only acts that are motivated by, or which are intended to express prejudice or hatred, but any conduct carried out during an offence where the offender is aware his behaviour is likely to be perceived by right-minded individuals as indicating hostility towards the victim’s identity. The article concludes that such a broad approach to conceptualizing hostility is justified based on the need for the state to expressly denounce all public displays of identity-based prejudice. The approach also acknowledges the harmful effects that all expressions of hate (motivated by hostility or not) have on victims, minority communities and to the cohesiveness of Britain’s multicultural society. (shrink)

This article highlights certain recurring themes in Mariano Artigas’s works by examining a judicial decision made in the United States in 1982 concerning the teaching of “creation-science” alongside “evolution-science” in public schools. These themes include: the proper delimitation of the boundaries of science, the importance of philosophy as a bridge between science and religion, and the misunderstandings concerning the limits of science inherent in scientism.

Timely effective regulation of genetic advances presents a challenge for justice systems. We used a 51-item battery to examine views on major genetics-related issues of those at the forefront of regulating this area – Supreme Court judges (N = 73). We also compared their views with those of other justice stakeholders (N = 210) from the same country (Romania). Judges showed greater endorsement and less variability in views on the use of genetic data and technologies than the other groups. (...) The agreement among the judges was strikingly strong for some controversial issues, including gene editing; patenting of genetic findings; and the State using genetic information for crime prevention. Judges and other lawyers recognized the need for amending the relevant laws. Without appropriate regulation, genetic science has a risk of propelling inequality rather than fulfilling its promise to improve people’s lives. (shrink)

This study examines the intertextual influence of the courtroom spoken genre with the written genre used by judge’s summing up and lawyers’ closing arguments in Ethiopian Criminal court trial. In doing so, it employs the relational and comparison-expository structuring models. The relational struc- turing is used to give emphasis to the manner in which evidence items bear on particular issues and shows how evidence items are related to each other and to major facts in issues of judge’s (...) summing-up while the comparison-expository structure is to intertextually link the spoken genres of the two opposing lawyers’ views with the Ethiopian criminal law written statutes. The findings of the study suggest that mixed rhetorical strategies, the judge’s relational summing up and the lawyers’ comparison-expository closing arguments, are more effective than a strict narrative strategy in addressing the final judgment of the argumenta- tion. (shrink)

Name der Zeitschrift: Semiotica Jahrgang: 2016 Heft: 209 Seiten: 397-418.