Shared authority: courts and legislatures in legal theory

This book advances a fresh philosophical account of the relationship between the legislature and courts, opposing the common conception of law, in which it is legislatures that primarily create the law, and courts that primarily apply it. This conception has eclectic affinities with legal positivism, and although it may have been a helpful intellectual tool in the past, it now increasingly generates more problems than it solves. For this reason, the author argues, legal philosophers are better off abandoning it. At the same time they are asked to dismantle the philosophical and doctrinal infrastructure that has been based on it and which has been hitherto largely unquestioned. In its place the book offers an alternative framework for understanding the role of courts and the legislature; a framework which is distinctly anti-positivist and which builds on Ronald Dworkin’s interpretive theory of law. But, contrary to Dworkin, it insists that legal duty is sensitive to the position one occupies in the project of governing; legal interpretation is not the solitary task of one super-judge, but a collaborative task structured by principles of institutional morality such as separation of powers which impose a moral duty on participants to respect each other's contributions. Moreover this collaborative task will often involve citizens taking an active role in their interaction with the law.

Scientific proof that humans enjoy punishing wrongdoers: The implications for punishment and sentencing

Recent developments in brain science confirm that as a race we are in fact a punitive lot. Human beings actually derive pleasure from inflicting punishment on wrongdoers. We are wired in such a way that the part of our brain that reports pleasure is activated when we punish norm violators. This is even when punishment has no tangible or demonstrable benefits. However, we are not slaves lo our emotions. Another region of our brain 'kicks-in' if punishment becomes self-defeating, in that it conflicts with our other interests. The implications of this research for punishment theory and the practice of sentencing are discussed in this paper. The findings give qualified support to the theory known as intrinsic retributivism, but do not suggest it is the soundest theory of punishment. This is because we stop punishing when it comes at a cost to us. The good feeling that punishment invokes in punishers is another consequential consideration in favour of the utilitarian theory of punishment. However, it is not clear that the utilitarian calculus is necessarily affected by the findings. The main implication of the research findings relates to the relevance of public opinion to sentencing practice. The findings support the view that public sentiment, which seems to support increasingly tougher sanctions, can be curtailed of the public are informed that punishment comes of a cost to community.

Immortality and sentencing law

The time may not be far away where we may be able to live much longer than we do now – potentially forever. This will have an enormous impact on the way people live their lives as the underlying premise that life is finite underpins many of the central decisions and life choices we make. This paper outlines some philosophical and legal doctrines that are based on the premise that life is finite and some of the changes that may need to occur in light of medical advances in ageing. In particular, it focuses on the changes to sentencing law that may be necessary to accommodate increased human longevity. For the skeptics who refuse to accept the concept of immortality, the arguments presented do not depend on living forever. Some of the issues discussed here are also relevant, albeit in an attenuated manner, because of increases in human longevity that have occurred in the last 100 years.

The pillory effect : media, the courts and the punitive role of public shaming in Australia

Public shaming and humiliation have been used across cultures for centuries to punish offenders and define the boundaries of acceptable behaviour for communities. This article argues that since court-imposed shaming sanctions were phased out in Australia, the news media has assumed responsibility for performing this cultural practice. Through critical engagement with some of the research literature on shaming, the historical shift to the media as the modern pillory is explored. This article looks beyond the doctrine of open justice, which assigns the news media a dual role as a watchdog against injustice and a conduit between the courts and the public, to consider its role in shaming and suggest this role continues to evolve in a changing media landscape.

Multiplicity of International Courts and Tribunals

This work comprehensively explores the implications of multiplicty of international judicial bodies on the coherent application of public international law. It carried out an in-depth analysis of the underlying reasons for the multiplicity, a thorough discussion of the benefits and the challenges presented by this development, its theoretical dimensions and solutions suggested to mitigate the challenges. The work locates the root causes of these challenges in the normative and institutional expansions of international law without a corresponding coordination of the activities of the ¿proliferating¿ judicial bodies. The challanges are systemic in nature. Clearly, because of their systemic nature, the impacts of these challenges are not limited to the specific courts, cases and parties implicated, but have a ripple effect that reverberates throughout the system. Therefore, the mitigation of the impacts of these challenges is of a paramount importance for the credibility, predictability, legitimacy and overall integrity of the international legal system and the eventual augmentation of the ¿compliance pull¿ garnered as a result.

The Map of the Courts and the Brazilian Borders

The formation of our borders are analyzed, at first presenting the question of the demarcation line of Tordesillas and the problems that led to the abandonment of this trace to adopt a configuration thatwould deal with both the actual possession of the territory (uti possidetis) as the natural borders formed by rivers and water borders. Next, the Map of the Courts is examined, having served as the basis for the Treaty of Madrid, and it determines, actually, the current configuration of our country. An analysis is made of this cartographic document, with the aid of digital cartography, which yieldeds in the quantity of existing distortions, to modeled its trait and found out how it was built.