Descartes on the human soul : philosophy and the demands of Christian doctrine

By the 17th century Catholic orthodoxy had defined a range of propositions concerning the human soul as revealed by God and verifiable by natural reason. The writings of Rene Descartes display a consistent adherence to these orthodox propositions. The conclusion presents him as ultimately unsuccesful in convincing his contemporaries that his philosophy provided the rational demonstration of the key soul doctrines and that he was worthy of the title "Christian philosopher"

Rejection of the fruit of the poisonous tree doctrine in Australia : a retreat from progressivism

This article canvasses the key Australian exclusionary rules and discretions to exclude evidence under both the common law and its statutory counterparts in the Uniform Evidence Legislation now in effect in the Commonwealth, Victoria, New South Wales, the Australian Capital Territory and Tasmania. In examining these exclusionary rules and discretions, an analysis is made as to whether evidence derived from primary evidence excluded under one or more of these rules should also be excluded under an American style 'fruit of the poisonous tree doctrine' - and why or why not. Finally, the article compares the current Australian approach to this doctrine with the present state of the American doctrine and the recognised exceptions thereto. The article concludes with recommendations for applying the doctrine in both countries, subject to suggested changes in the Jaw that take the realities of political correctness and human frailty into account.

Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales

This article critiques one aspect of the High Court’s reasoning in its landmark 2010 decision of Kirk v Industrial Court of New South Wales, namely its reliance on ‘accepted doctrine at the time of federation’ to determine the ‘defining characteristics’ of the state Supreme Courts. I argue that the relevant passages in Kirk are ambiguous and capable of two alternative readings, which I term the ‘pre-Federation entrenchment theory’ and the ‘on-Federation entrenchment theory’. With extensive reference to primary and secondary materials from the Federation era, I argue that both theories are flawed and, indeed, contrary to accepted doctrine at the time of Federation. Consequently, if the holding in Kirk is to be defended, other justifications for the entrenchment of judicial review in the state jurisdictions, which were only touched upon in Kirk, need to be developed and articulated with greater thoroughness and rigour.

Evidence-based psychiatric practice: doctrine or trap?

Medical practice has rapidly shifted towards an 'evidence-based' approach. While there are acknowledged clear benefits to this, a number of pitfalls are frequently not appreciated. Perhaps the most important limitation is the extent to which the current body of data is inadequate for many common clinical decisions. Algorithms risk being developed, frequently by third parties, without acknowledgement of these limitations and with substantial implications for clinical independence and the quality of patient care. This paper discusses potential problems of the evidence-based approach and suggests possible guidelines for the management of clinical decisions given the limitations of data-based guidelines.

Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

The intoxication defence: toward a better understanding of current doctrine and reform

This article deals with the contentious issue of the extent to which an intoxicated person, particularly one who has become inebriated of his or her own volition, should be permitted to escape liability on the basis that the degree of inebriation was sufficient to preclude the fact-finder from finding a volitional act or omission on the part of the accused and/or that he or she acted with the required mens rea, if any, as defined by the common law or statutory definition of the offence. In addressing this issue, the article embarks upon a thorough analysis of the House of Lords seminal decision in Director of Public Prosecutions v Majewski (1977) AC 443 which, despite some very harsh criticism of late, continues to be the leading authority on the question in the United Kingdom, United States and Australia. As part of this analysis, the article examines and ultimately attempts to resolve the longstanding controversy over what has proved to be the elusive distinction between crimes of basic or general intent and those of specific intent. The article concludes by rejecting the Majewski principles in favour of those enunciated by the High Court of Australia in R v O'Connor (1980) 146 CLR 64; 54 ALJR. In reaching this conclusion, the article notes various legislative and academic proposals for reform as well as statutory reforms in the United Kingdom, United States, Canada and Australia.

The South African Doctrine of Notice: a comparative law perspective

The doctrine of notice was received into South African law in Cohen v Shires, Mchattie and King (1881-1884) 1 SAR TS 41 by reference to a 17th century Dutch decision and English equity.The reception of the polar star of equity has led to doctrinal problems and differing views as to requirements for the operation of the doctrine ever since. This is illustrated in the decision of the Supreme Court of Appeal in Meridian Bay Restaurant (Pty) Ltd v Mitchell 2011 (4) SA 1 (SCA). The Court mentioned fraud and equity as the doctrinal basis but also accepted the view that the doctrine is an anomaly which does not fit into the principles of either the law of delict or property law.The Court required actual notice (or dolus eventualis) and wrongfulness for the operation of the doctrine of notice. In the following discussion of the decision it is argued that for the operation of the doctrine it should be required that: (a) a prior personal right aimed at the acquisition of a real right existed; (b) a holder of a subsequent personal right was actually aware or foresaw the possibility of the existence of the prior personal right; and (c) the holder of the real right nonetheless infringed upon the prior personal right by concluding a subsequent contract and obtaining registration of the real right in the deeds office.

The Rechtslehre doctrine and Kant's philosophy of history

The text is divided in two phases. In the first phase, consisting of three parts, the main concepts of Kant's Doctrine of Right are considered in a comprehensive approach related to: the issue of the relations between natural right and positive right, problem closely connected to that of the relations between natural state and civil state, private right and public right; to the doctrine of property and its connection with political right. on treating the right in its several types, we intend to appoint the practical reasoning as a background of the Doctrine. In the second phase, concerning its last section, the consideration on the presence of the practical reasoning into the right is placed before some specificities of Kant's phylosophy of history, with the intent of establishing the possible relation between Rechtslehre and that philosophy.

The Catholic Doctrine of Transubstantiation: An Exposition and Defense

The purpose of this thesis is to offer both an exposition and defense for the Catholic Church's traditional understanding of eucharistic transubstantiation. I hope to show how a belief in such a doctrine is in no way irrational nor is it indefensible; butinstead, the doctrine of transubstantiation makes sense when it is viewed in light of what Catholic Christians believe about who the human being is, what the human desires, and the special way in which God personally works in human history. The method I am following investigates how the doctrine of transubstantiation coheres with and follows the other beliefs that Catholics hold; that is, beginning with certain presuppositions, there is a certain rational progression to the Catholic understanding of real presence.

Plato's Doctrine Of Forms: Modern Misunderstandings

Among the philosophical ideas of Plato, perhaps the most famous is his doctrine of forms. This doctrine has faced harsh criticism due, in large part, to the interpretations of this position by modern philosophers such as René Descartes, John Locke, and Immanuel Kant. For example, Plato has been interpreted as presenting a ¿two-worlds¿ approach to form and thing and as advancing a rationalist approach to epistemology. His forms have often been interpreted as ideas and as perfect copies of the things of the visible world. In this thesis, I argue that these, along with other interpretations of Plato presented by the moderns, are based on misunderstandings of Plato¿s overall philosophy. In so doing, I attempt to show that the doctrine of forms cannot be directly interpreted into the language of Cartesian, Lockean, and Kantian metaphysics and epistemology, and thus should not be prematurely dismissed because of these modern Platonic interpretations. By analyzing the Platonic dialogues beside the writings of the modern philosophers, I conclude that three of the most prominent modern philosophers, as representatives of their respective philosophical frameworks, have fundamentally misunderstood the nature of Plato¿s famous doctrine of forms. This could have significant implications for the future of metaphysics and epistemology by providing an interpretation of Plato which adds to, instead of contradicts, the developments of modern philosophy.

Digital First Sale Doctrine Ante Portas – Exhaustion in the Online Environment

The purpose of the article is to provide first a doctrinal summary of the concept, rules and policy of exhaustion, first, on the international and EU level, and, later, under the law of the United States. Based upon this introduction, the paper turns to the analysis of the doctrine by the pioneer court decisions handed over in the UsedSoft, ReDigi, the German e-book/audio book cases, and the pending Tom Kabinet case from the Netherlands. Questions related to the licence versus sale dichotomy; the so-called umbrella solution; the “new copy theory”, migration of digital copies via the internet; the forward-and-delete technology; the issue of lex specialis and the theory of functional equivalence are covered later on. The author of the present article stresses that the answers given by the respective judges of the referred cases are not the final stop in the discussion. The UsedSoft preliminary ruling and the subsequent German domestic decisions highlight a special treatment for computer programs. On the other hand, the refusal of digital exhaustion in the ReDigi and the audio book/e-book cases might be in accordance with the present wording of copyright law; however, they do not necessarily reflect the proper trends of our ages. The paper takes the position that the need for digital exhaustion is constantly growing in society and amongst businesses. Indeed, there are reasonable arguments in favour of equalizing the resale of works sold in tangible and intangible format. Consequently, the paper urges the reconsideration of the norms on exhaustion on the international and EU level.

La Kabbale juive : histoire et doctrine ; essay critique

par Paul Vulliaud