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Legal norms

A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authority issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide to, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, that regulates the conduct of people, and generality, which are binding for the indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding for them, such as soldiers and public officials. In a legal sense, retro-activity refers to a law that impairs or invalidates the vested rights of an individual acquired under existing laws by creating new obligations to considerations that have been pre-established. Legal norms can either classify under true retro-activity, where norms influence the legal relations that have existed before its effect, or pseudo retro-activity, referring to how the validity of old legal relations can be influenced by derogated norms. Legal norms become validated from the moment it is published as part of legal order and become in effect from the moment it binds the subjects of the law. The Latin phrase "vacatio legis" refers to the period of time between a legal norms validity and effect. As the validity of a legal norm is limited from the moment of its adoption by legal institutions, a lapse of time can cause its termination. Legal norms can either be terminated by explicit derogation by the competent state authority, or through automatic derogation whereby the authoritative organisation adopts a new normative act that regulates the same relations, effectively replacing the old one.

                                               

Analytical jurisprudence

Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham. Analytical jurisprudence is not to be mistaken for legal formalism the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process. Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law. Analytic, or clarificatory jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural laws fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is, must be treated as a strictly separate question to normative and evaluative ought questions. The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations. Springer books commissioned essays on analytical jurisprudence for A Treatise on Legal Philosophy and General Jurisprudence. ISBN 9781402033872 Volume 5: Legal reasoning by Sartor Volume 1: Legal ontology and epistemology by Pattero Volume 7: Rome, Middle Ages, & Politics edited by Padovani & Stein Volume 4: Legal doctrine by Peczenik Volume 3: Sources and institutions of law by Shiner Volume 8: Various including Blackstone & Bentham by Michael Lobban Volume 6: History to early modern scholasticism edited by Miller and Biondi Volume 2: Legal foundations by Rottleuthner

                                               

Cautelary jurisprudence

Cautelary jurisprudence is law made in a precautionary way prior to or outside of the normal legislative enactment. It meant empirical, practical legal efforts aimed at solving individual cases, as distinguished from regular jurisprudence which sought to establish abstract rules under which individual cases would fall. Its first proponent was Quintus Mucius Scaevola Pontifex, who thus gave his name to the Roman designation for this kind of law, the cautio muciana. Cautelary law is a tentative "procedure" used by lawyers. Initially, in Ancient Rome, the idea of inheritance as being subject to conditions was not in practice. With cautio muciana it gave those who are to inherit a legacy, the legatees, a "negative authority" over something which otherwise would not have occurred until the death of the owner of the legacy, the legator. It thus also makes it possible for the legator to gain promises from legatees. The legatee provides a stipulatio or cautio, promising something in return for a legacy. Thus, for example, it may be stipulated in the negative, "I agree that I can have full and exclusive use of, and live in the house, so long as I am not married." The cautio muciana is one of a long list of legal devices invented used by the Romans to address practical situations without changes of general principles. Cautelary jurisprudence nowadays is associated with inheritance law and the administration of trusts. The various inventions by lawyers of these new, arrangements, or forms of law, are often enacted outside of nation or state legislature, but with agreement amongst other lawyers and/or judges. Often, many years later, such arrangements are fully enacted as a catching up exercise by the legislature.

                                               

Commodity form theory

Commodity form theory is a theory of jurisprudence advanced by the Soviet legal theorist Evgeny Pashukanis. The theory argues that the legal form is the parallel of the commodity form under capitalist society. All law is concerned with the process of the exchanging of commodities between subjects who act as the "guardians" of commodities and are created by law in order to enable the commodity production form of society to function. The theory can be explained as based on two premises, logical and historical.

                                               

Courtroom Workgroup

In the United States criminal justice system, a Courtroom Workgroup is an informal arrangement between a criminal prosecutor, criminal defense attorney, and the judicial officer. This foundational concept in the academic discipline of criminal justice recharacterizes the seemingly adversarial courtroom participants as collaborators in "doing justice." The courtroom workgroup was proposed by Eisenstein and Jacob in 1977 to explain their observations of the ways courts, especially lower level courts, actually come to decisions. Because the courtroom workgroup deviates from the public consensus of how justice works, it has developed a deviant set of rules to continue its work and facilitate daily life for its participants. The academic theory of the courtroom workgroup has four cornerstone concepts that recognize this fact: Speed, Pragmatic Cynicism, Collegiality, and Secrecy. Efficient courtroom workgroups seek to process cases rather than dispense justice. This has been confirmed to greater and lesser extents in different courts. Defendants are assumed to be guilty. The procedural merits of the case are the true determinative factors of an outcome. Prosecutors and defense attorneys engage in a comparison of charges against possible procedural flaws and possible defenses to arrive at the going rate for a crime. These factors are used to determine how much punishment the plea bargain will offer. For example, group relationships and the desire to "maintain" a healthy working relationship are important to group members. The workings of the courtroom group and the "going rate" for given crimes are not matters for public disclosure. Estimates can be given to clients, but usually couched in terms of the prosecutions willingness to negotiate. The courtroom workgroup is a mechanism for prosecutorial discretion. Various techniques are used to convince the defendant that the evidence against him or her is overwhelming." Charge stacking” is a process by which police and prosecutors create a case with numerous charges or numerous instances of the same charge to convince the defendant that the risk of not pleading guilty is intolerable. The defendant may be convinced to plead guilty to a few of the charges in return for not being prosecuted for the remaining charges. The courtroom workgroup is, in some sense, a response to a lack of resources for public defenders. Defense attorneys in public defender offices often do not have sufficient time to prepare a case in detail for all of their clients. Further, they often do not have the budget to fully investigate the facts of a case through either staff or private investigators. They often must rely solely on police reports for such information. In some jurisdictions, clients do not meet their attorneys until they are in court. Typically, public defenders will meet briefly with clients in holding facilities or jails. The defense attorney defends his or her client by seeking less punishment. Huemann 1977 indicates that many defense attorneys feel pressured to keep up with their caseloads. This pressure can manifest in the courtroom through rebukes by the judge for delays. Many subtle pressures combine to encourage participation in the courtroom workgroup. The concept of a courtroom workgroup is associated with plea bargaining. The courtroom workgroup shows remarkable explanatory power in overburdened courts dealing with large caseloads. The courtroom workgroup model is best suited to explain jurisdictions where defense attorneys are more or less permanently assigned, but even occasionally appointed lawyers can participate in these practices. While many of the higher level prosecutions still follow the adversarial model, there is evidence that lower-level proceedings follow the courtroom workgroup model. Boland, Brady, Tyson, & Bassler 1983 indicate that approximately 90 percent of criminal cases are settled by plea bargain. This figure appears to be stable over the last twenty years Rainville & Reaves, 2003. Some collaborative efforts on the part of the courtroom workgroup simply must be present to facilitate this high percentage of pleas.

                                               

Human Rights and Climate Change

Human Rights and Climate Change is a conceptual and legal framework under which international human rights and their relationship to global warming are studied, analyzed, and addressed. The framework has been employed by governments, United Nations organizations, intergovernmental and non-governmental organizations, human rights and environmental advocates, and academics to guide national and international policy on climate change under the United Nations Framework Convention on Climate Change and the core international human rights instruments. Human rights and climate change analysis focuses on the anticipated consequences to humans associated with global environmental phenomena including sea level rise, desertification, temperature increases, extreme weather events, and changes in precipitation, as well as adaptation and mitigation measures taken by governments in response to those phenomena that may involve human rights or related legal protections.

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