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Books > Law > Jurisprudence & general issues > Foundations of law
This volume contributes to the latest studies in legal discourse
studies by presenting a descriptive and interpretive analysis of
English legal genres used in academic and professional writing
contexts. The results of corpora-driven data are discussed through
(meta)discourse, genre and other theoretical perspectives, and
offer insights into the ways the writers' discursive practices and
meanings shape their membership of the legal community and
discipline. The volume attempts to show these ideas in systematic
and clear language, and is designed for native and non-native
readers whether involved in English applied linguistic research or
disciplinary English writing instruction.
The history underlying and informing the Australian legal system is
a uniquely interesting amalgam of English, American and local
developments. It is often poorly understood - not least because
there are no modern counterparts to this volume and its companion
on commercial law. But, as Holmes long ago pointed out, in order to
know what the law is we must first know what it has been. This
volume not only discharges that function, informing its readers
clearly and lucidly, but it also demonstrates how Australian legal
history may be examined from a range of perspectives, leading to a
deeper and richer understanding. This first volume of 15 essays, by
distinguished judges and practitioners, sets the very highest
standards of analysis and scholarship. There are incisive
assessments of key figures such as Sir Owen Dixon and Justice
Joseph Story (by Justices Hayne and Allsop respectively), and of
key developments such as the establishment of an Australian land
law, the reception of the common law, the growth to nationhood, the
changing role of precedent, and the separation of powers. There are
essays on the very early influences on Australian law from the
leading early texts (Glanvill and Bracton), from early English
statutes and from Roman law. There are essays on the growth of
equity, and even a modern dialogue (in accordance with an ancient
tradition) on the Judicature legislation. And there are accounts of
legal procedure, which is ultimately the source of much substantive
law, and of the jurisprudential figures who have sought to analyse
law. The introductory essay by Justin Gleeson and James Watson
provides an overview of the volume, as well as being a powerful
argument for why an understanding of legal history is not optional
but essential. Three of the authors have been appointed to judicial
office since preparing these essays, and another has been made
Solicitor-General of Australia. All have made distinguished
contributions, and their essays will bear reading and re-reading,
for all Australian lawyers looking for a deep understanding of how
the Australian legal system operates.
Misplaced Traditions is a special issue (Volume 16 No 1) of the
journal Law in Context. The contents are listed below.
Pre-trial detention refers to the period when a person, after being
arrested, is detained so as to determine the nature of the offences
and the characterization of the charges. This notion is part and
parcel of the legal proceedings of a criminal investigation and
aims at striking a fragile balance between protecting the State and
respecting individual freedoms. Lots of examples can be quoted to
illustrate the various pre-trial detention modalities in common law
and civil law traditions, including the duration of custody;
custody rights; right to silence; right to the presence of a
lawyer; modalities and control of pre-trial detention; and
procedures in case of wrongful detention.This book makes an
important contribution to the newly-researched topic of pre-trial
detention from a theoretical and empirical point of view. Papers
alternatively consider various issues: they analyse the
philosophical principles and policies underlying pre-trial
detention and look at the different forms it takes according to
several countries; on a more technical and pragmatic level, they
raise the question of the use of an appropriate terminology and the
problem of translation that may arise from the differences between
the studied legal systems. Finally, they consider the checks and
balances mechanisms put in place to limit the negative effects of
the measures restricting liberty.This volume contains a selection
of contributions by academics specialized in law and comparative
criminal procedure, political science, history, sociology,
linguistics, and legal translation, and offers a comparative
analysis of countries with differing legal traditions.
In 2000, the NSW Bar Association established an annual lecture in
honour of Sir Maurice Byers Kt CBE QC, Commonwealth
Solicitor-General 1973-1983; this volume contains the first 12
lectures, 2000-2012. Each lecture is introduced by Justices Nye
Perram and Rachel Pepper who discuss the background to the lecture
and developments which have taken place since it was delivered. In
addition, there is a short collection of thoughts by Sir Maurice
himself together with some further pieces.
It is a widely held belief today that there are too many lawsuits,
too many lawyers, too much law. As readers of this engaging and
provocative essay will discover, the evidence for a "litigation
explosion" is actually quite ambiguous. But the American legal
profession has become extremely large, and it seems clear that the
scope and reach of legal process have indeed increased greatly. How
can we best understand these changes? Lawrence Friedman focuses on
transformations in American legal culture that is, people's beliefs
and expectations with regard to law. In the early nineteenth
century, people were accustomed to facing sudden disasters
(disease, accidents, joblessness) without the protection of social
and private insurance. The uncertainty of life and the
unavailability of compensation for loss were mirrored in a culture
of low legal expectations. Medical, technical, and social
developments during our own century have created a very different
set of expectations about life, again reflected in our legal
culture. Friedman argues that we are moving toward a general
expectation of total justice, of recompense for all injuries and
losses that are not the victim's fault. And the expansion of legal
rights and protections in turn creates fresh expectations, a cycle
of demand and response. This timely and important book articulates
clearly, and in nontechnical language, the recent changes that many
have sensed in the American legal system but that few have
discussed in so powerful and sensible a way."
This is a collection of essays ranging from Pufendorf, Sociality
and the Modern State by Craig L. Carr and Michael Seidler, to
Conscience and Reason: The Natural Law Theory of Jean Barbeyrac by
Tim Hochstrasser.
Why do some people not hesitate to call the police to quiet a
barking dog in the middle of the night, while others accept the
pain and losses associated with defective products, unsuccesful
surgery, and discrimination? Patricia Ewick and Susan Silbey
collected accounts of the law from more than four hundred people of
diverse backgrounds in order to explore the different ways that
people use and experience it. Their fascinating and original study
identifies three common narratives of law that are captured in the
stories people tell.
One narrative is based on an idea of the law as magisterial and
remote. Another views the law as a game with rules that can be
manipulated to one's advantage. A third narrative describes the law
as an arbitrary power that is actively resisted. Drawing on these
extensive case studies, Ewick and Silbey present individual
experiences interwoven with an analysis that charts a coherent and
compelling theory of legality. A groundbreaking study of law and
narrative, "The Common Place of Law" depicts the institution as it
is lived: strange and familiar, imperfect and ordinary, and at the
center of daily life.
A new order is being forged in Africa. States across the continent
are working, fighting, and negotiating in an effort to construct
liberal societies and effective government. Organized around the
life of Francis L. Nyalali, who served as Chief Justice of Tanzania
from 1976 through 1999, Building the Rule of Law shows how judges
negotiate new institutional relationships. Through the trials and
disappointments of Frances Nyalali, we learn the intricate
difficulty of erecting an independent judicial system. But in his
success and the success of his homeland, we see the crucial role of
justice in an effective democracy.
Without our consent and often without our knowledge, the government
can constantly monitor many of our daily activities, using closed
circuit TV, global positioning systems, and a wide array of other
sophisticated technologies. With just a few keystrokes, records
containing our financial information, phone and e-mail logs, and
sometimes even our medical histories can be readily accessed by law
enforcement officials. As Christopher Slobogin explains in "Privacy
at Risk," these intrusive acts of surveillance are subject to very
little regulation.
Applying the Fourth Amendment's prohibition on unreasonable
searches and seizures, Slobogin argues that courts should prod
legislatures into enacting more meaningful protection against
government overreaching. In setting forth a comprehensive framework
meant to preserve rights guaranteed by the Constitution without
compromising the government's ability to investigate criminal acts,
Slobogin offers a balanced regulatory regime that should intrigue
everyone concerned about privacy rights in the digital age.
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