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Showing papers on "Judicial opinion published in 1987"


Book
03 Dec 1987
TL;DR: With double the length and coverage of the original, this new edition of A Dictionary of Modern Legal Usage marshals and analyzest the modern legal vocabulary more thoroughly than any other contemporary reference work can claim to do.
Abstract: With double the length and coverage of the original, this new edition of A Dictionary of Modern Legal Usage marshals and analyzesthe modern legal vocabulary more thoroughly than any other contemporary reference work can claim to do. Since the 1987 first edition, Bryan A. Garner has drawn on his unrivaled experience as a legal editor to refine his positions on legal usage and to add a wealth of new material. Here's how Garner's revision makes DMLU, Second Edition indispensable: - Updates every existing entry, making this a second edition in the fullest sense - adds hundreds of new entries - adds hundreds of new sections within existing entries - adds over 3,000 new illustrative quotations from judicial opinions and leading lawbooks by prominent legal commentators - Reconsiders previously held positions, now saying, for example, that contractions are sometimes permissible in legal writing - Fully elaborates ideas only hinted at in the first edition - Takes into account numerous comments received from first edition users - Expands and updates cross-references to guide readers quickly and easily Features Functions both as a style guide and as a law dictionary Guides writers to distinguish between true terms of law and mere jargon Illustrates recommended forms of expression as well as common blunders with thousands of quotations and citations Explains the origins of expressions lawyers regularly use, such as "Know all men by these presents", or "party of the first part" Records and evaluates more than 100 twentieth-century neologisms, from "conclusory" to "farminor" Distinguishes American from British usage and refers to current practice among Australian, Canadian, and Scottish legal writers Solves editorial problems by dealing with practical writing issues Offers wit and erudition reminiscent of H.W. Fowler, author of the first so-called usage dictionary In short, in its Second Edition, DMLU remains, as one reviewer hailed it in 1987, "truly unique in the literature of law". It is an essential resource for practising lawyers, scholars of the law, and libraries of all sizes and types.

303 citations


Journal ArticleDOI
TL;DR: This paper analyzed the relationship between the actions of the justices and support for the Supreme Court during one of the most critical periods of U.S. political history, the four months of 1937 during which Franklin D. Roosevelt sought legislation to "pack" the high bench with friendly personnel.
Abstract: I show the intimate connection between the actions of the justices and support for the Supreme Court during one of the most critical periods of U.S. political history, the four months of 1937 during which Franklin D. Roosevelt sought legislation to “pack” the high bench with friendly personnel. Over the period from 3 February through 10 June 1937, the Gallup Poll queried national samples on 18 separate occasions about FDR's plan. These observations constitute the core of my analyses. I demonstrate the crucial influence of judicial behavior and the mass media in shaping public opinion toward the Supreme Court. This research illuminates the dynamics of public support for the justices, contributes to a clearer understanding of an important historical episode, shows the considerable impact of the mass media on public attitudes toward the Court, and adds more evidence on the role of political events in the making of public opinion.

146 citations





Posted Content
TL;DR: In this article, the problem of finding a sufficient and solid basis in positive law to support a judge's "just" or "equitable" conclusion is considered, and the problem is viewed as concerning judicial discretion, or perhaps even the legislative function involved in adjudication.
Abstract: Each legal system, and perhaps even each individual judge, has to come to grips with the problem of defining the place reserved for equity in positive law - a problem which has both a philosophical and a practical aspect. It is common knowledge that judges often begin by determining what is just in their opinion, and then look for the legal reasoning to support their conclusion. Our problem concerns the situation where the judge cannot find a sufficient and solid basis in positive law to support his "just" or "equitable" conclusion. Looked upon from a somewhat different angle, the problem may be viewed as concerning judicial discretion, or perhaps even the legislative function involved in adjudication. Does minor legislation for the parties to the dispute by the judge contravene the hallowed principle of separation of powers between the legislative and the judicial organs? Does judicial discretion contravene the idea that all law has to be general, certain, stable and predictable?

22 citations


Journal ArticleDOI
TL;DR: In this paper, content analysis techniques and standards are discussed in order to produce highly reliable data, and a case study involving U.S. Supreme Court decisions is also presented to demonstrate these techniques and to discuss options for researchers when less than fully reliable data are produced.
Abstract: Content analysis is used widely by judicial scholars to classify judicial decisions and opinions. Unfortunately, much of the existing research either ignores or is insensitive to the demands of this methodology, resulting in findings based on potentially faulty data. Content analysis techniques and standards are discussed in this article which would likely produce highly reliable data. A case study involving U.S. Supreme Court decisions is also presented to demonstrate these techniques and to discuss options for researchers when less than fully reliable data are produced.

17 citations


Book
27 Apr 1987
TL;DR: In this article, the authors introduce the interrelationship of the legal system and the environment, and present a series of environmental law cases and study questions for students to determine for themselves how the cases should have been decided.
Abstract: This book introduces the interrelationship of the legal system and the environment. Students are confronted with key environmental law cases and asked to determine for themselves how the cases should have been decided. Broad questions are raised: What is the capacity of the courts to make fair judgments in cases involving complex scientific issues. Does the adversarial system on which our legal system is based, work at all when the issues involve multiple points of view. The authors' liberal arts approach leads to a wide spectrum of related topics: the history of the common law, the political science of administrative agencies, the philosophy of new rights for nonhumans, our obligation to future generations, and the ecology of species extinction. The struggle to spell out answers to questions such as the constitutional right to a decent environment and the placing of nature in public trust is revealed in the judicial opinions that form the centerpiece of this text. Explanatory introductions make the cases intelligible to beginners, and the accompanying study questions help both faculty and students link the cases to broader issues and to the relevant literature. The text is appropriate for under-graduate courses in environmental law and environmental policy, asmore » well as for nonlaw graduate courses in planning or public administration.« less

15 citations


Journal ArticleDOI
TL;DR: The authors examined questions relating to federalism and intergovernmental relations from public opinion polls in an effort to understand public attitudes, and found that Americans recognize the intergovernmental nature of their system and believe that all their governments should share in the provision and financing of public programs and policies.
Abstract: At a time when Americans are assessing their Constitution, the question of how the public views the federal system is important. This article examines questions relating to federalism and intergovernmental relations from public opinion polls in an effort to understand public attitudes. Different polling organizations asked different questions at different times, producing conflicting and often incomplete data. Nevertheless, the evidence indicates that Americans recognize the intergovernmental nature of their system and believe that all their governments should share in the provision and financing of public programs and policies. Moreover, they were selective in their choice of which government should bear the principal responsibility for certain functions. Although they wanted a more vigorous federal government and believed that it gave them more for the dollar, Americans expressed strong support for the states. Their attitudes evidence support for the federal arrangement, a preference for shared authority, and a climate conducive to cooperation.

10 citations


Journal ArticleDOI
TL;DR: It is suggested that recognition for training should be withdrawn from any hospital where anaesthetists do not routincly visit their patients and that no new appointment be made.
Abstract: is an essential part of the professional role of the anaesthetist and that every time a patient is anaesthetised by someone he has never met, our profession is belittled. Rather than seeing letters which deplore the low incidence of pre-operative visits. I would prefer to see the leaders of our profession using the correspondence columns of Anne.~t/wsiu to insist that no new appointment be made. at any grade, where there is inadequatc opportunity to visit patients before and after operation and that recognition for training should be withdrawn from any hospital where anaesthetists do not routincly visit their patients.

10 citations


Journal ArticleDOI
TL;DR: In this article, a Sentencing Factors Inventory (SFI) was developed with high levels of interrater agreement from probation files and, in a separate sample, from court observations.
Abstract: The number, variety, and complexity of factors that govern judicial discretion have made it difficult for legal practitioners, social science researchers, convicted offenders and their victims, and the general public to understand sentencing practices. The development of a standardized and quantitative summary of high-consensus aggravating and mitigating circumstances is an explicitly psychometric approach to this general problem in discretionary law. A Sentencing Factors Inventory (SFI) was scored with high levels of interrater agreement from probation files and, in a separate sample, from court observations. Systematic evaluations and extensions of the SFI approach to judicial discretion are indicated with particular attention to matters of social validity.

Journal ArticleDOI
Irving Crespi1
TL;DR: Crespi et al. as mentioned in this paper pointed out that despite the widespread use of survey data in litigation, the admissibility of and evidentiary weight given to surveys remains problematic.
Abstract: Survey researchers are frequently frustrated and irritated by the difficulties they encounter when the results of their surveys are introduced as legal evidence. The sources of these difficulties are traced to contrasting scientific and legal interest in "truth" and methods for establishing truth. These contrasts explain why the scientific worth of a survey is, by itself, insufficient to establish its relevance and value as evidence in an individual case. Consequently, despite the widespread use of survey data in litigation, the admissibility of and evidentiary weight given to surveys remains problematic. Survey researchers must be as sensitive to legal precedent and rules of evidence as they are to scientific method when designing surveys for their data to be accepted by a court. The use of survey data as legal evidence involves considerations that differ substantially from those that arise in scientific research. Failure to understand those considerations and how they affect the admissibility and evidentiary value of survey data can lead to frustration and irritation on the researcher's part. In this article, by describing how surveys are used in litigation and contrasting this with their use in scientific research, we seek to clarify what makes for the effective use of survey data as evidence. To this purpose, we first contrast the search for "truth" in science with that in a trial. The reasons why survey data were for a long time excluded as "hearsay" are then explored. Finally, we examine the relevance of survey data to the legal issues to be decided in most trademark litigation. IRVING CRESPI heads his consulting firm, Irving Crespi and Associates, and is Professor of Marketing, Baruch College, CUNY. This article is a revised version of a paper presented at the 1985 Joint Statistical Meetings of the American Statistical Association, August 5, 1985. Many of the judicial decisions cited in this paper were located as part of a research effort supported by RL Associates of Princeton, NJ. Michael Rappeport of RL Associates provided invaluable guidance in that effort. Public Opinion Quarterly Volume 51:84-91 ? 1987 by the American Association for Public Opinion Research Published by The University of Chicago Press / 0033-362X/87/0051-01/$2.50 This content downloaded from 157.55.39.104 on Mon, 20 Jun 2016 05:47:48 UTC All use subject to http://about.jstor.org/terms Surveys as Legal Evidence 85 Scientific and Legal "Truths" Although statistical data of all kinds are widely used in litigation, they are often treated by courts as having limited value compared with anecdotal reports that most social scientists would consider of lesser value. In 1981, for example, a court commented in deciding a discrimination case that: We find it very damaging to plaintiffs' position the fact that not only was their statistical evidence insufficient, but that they failed completely to come forward with any direct or anecdotal evidence of discriminatory employment practices by defendants. (Garcia v. Rush Presbyterian-St. Luke's Medical Center, 660 F.2d 1217) The Supreme Court has expressed a similar attitude toward statistical data, describing their value as contingent upon the uniqueness of individual circumstance: ... statistics are not irrefutable. They come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. (International Brotherhood of Teamsters v. United States) In a recent discrimination case, statistical analyses of payroll data, personnel records, and surveys constituted a major segment of the evidence presented by both plaintiff and defendant, and figured prominently in the court's decision. Nonetheless, anecdotal accounts were, if anything, more persuasive to the court: More important than any statistical evidence in this case is the testimony of Sears' witnesses. . . . Each of these witnesses had substantial personal knowledge of the checklist system at Sears. The court found them to be highly credible witnesses and was persuaded by their testimony.... The witnesses' uncontradicted testimony helps "bring to life" Sears' statistical evidence. ... EEOC presented no credible witnesses with personal knowledge of Sears who could contradict the testimony of Sears' witnesses, or give any life to EEOC's inadequate statistical data and analyses. (Equal Employment Opportunity Commission v. Sears, Roebuck and Co.) Social science and the American legal system are each concerned with establishing "truth," but they operate under very different sets of definitions, precepts, and procedures for achieving that goal. Functioning as a social scientist, the survey researcher seeks to document and This content downloaded from 157.55.39.104 on Mon, 20 Jun 2016 05:47:48 UTC All use subject to http://about.jstor.org/terms

Journal ArticleDOI
TL;DR: Parker's three year old opinion in International Union, United Mine Workers of America v. Red Jacket Consolidated Coal and Coke Company became the catalyst for transforming him from relative obscurity into a symbol of anti-labor conservatism as mentioned in this paper.
Abstract: Before a gathering of the White House Press corps on March 21, 1930, President Herbert Hoover announced his nomination for Associate Justice of the Supreme Court to fill a vacancy unexpectedly created by the death of Edward T. Sanford. His nominee was forty-four year old native North Carolinian John J. Parker, a member since 1925 of the United States Court of Appeals for the Fourth Circuit. Within days of the nomination organized labor and its allies in Congress and the press unleashed withering attacks on a single judicial opinion authored by Parker. In the process, the priority of issues raised in that case was dramatically inverted. The foremost issue, federal jurisdiction, became subordinated to the scope of an injunctive decree, an issue of secondary importance. Thus, the nominee's three year old opinion in International Union, United Mine Workers of America v. Red Jacket Consolidated Coal and Coke Company became the catalyst for transforming him from relative obscurity into a symbol of anti-labor conservatism.


Posted Content
TL;DR: In this paper, the authors consider the extraterritoriality issue more broadly and identify two general problems in international politics that are important in understanding the positions of the two sides in the controversy, their emotional commitment to these positions, and their legal arguments.
Abstract: In 1981-82, the United States imposed a set of far-reaching extraterritorial restraints on sales of oil and gas transmission equipment and technology to the Soviet Union in an effort to prevent or delay completion of the Yamal natural gas pipeline. This touched off the most violent dispute over extraterritoriality in the history of American trade controls. Numerous law review articles, a few legal briefs, and even a judicial opinion have discussed this incident. Most of these writings deal with the extraterritoriality issue by testing the validity of the American controls against what are presented as the accepted rules of international law regarding national prescriptive jurisdiction. Some writings discuss the "reasonableness" principle set forth in section 403 of the Restatement (Revised) of Foreign Relations Law as a limit on extraterritorial controls. The predominant approach, however, is to focus on the "minimum bases of jurisdiction to prescribe law" set out in section 402 of the Restatement (Revised), as the principles of law by which the validity of the pipeline regulations should and can be judged. This article considers the extraterritoriality issue more broadly. The perspective of the article is based in part on modern international relations theory. Using this approach, the article identifies two general problems in international politics that are important in understanding the positions of the two sides in the extraterritoriality controversy, their emotional commitment to these positions, and even their legal arguments. The article also discusses the inadequacies of international legal doctrines currently available for dealing with these problems.

Journal ArticleDOI
TL;DR: Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document as discussed by the authors and represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict.
Abstract: Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document. It represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict. As such, despite procedural objection to entry upon this terrain by the three dissenting judges, it leads the Court to pronounce specifically upon the core issue of when force can permissibly be used in international relations, as well as the contours of a claimed right of collective self-defense in the setting of interventions and civil strife.


Journal ArticleDOI
TL;DR: In this article, the authors consider the extraterritoriality issue more broadly and identify two general problems in international politics that are important in understanding the positions of the two sides in the controversy, their emotional commitment to these positions, and their legal arguments.
Abstract: In 1981-82, the United States imposed a set of far-reaching extraterritorial restraints on sales of oil and gas transmission equipment and technology to the Soviet Union in an effort to prevent or delay completion of the Yamal natural gas pipeline. This touched off the most violent dispute over extraterritoriality in the history of American trade controls. Numerous law review articles, a few legal briefs, and even a judicial opinion have discussed this incident. Most of these writings deal with the extraterritoriality issue by testing the validity of the American controls against what are presented as the accepted rules of international law regarding national prescriptive jurisdiction. Some writings discuss the "reasonableness" principle set forth in section 403 of the Restatement (Revised) of Foreign Relations Law as a limit on extraterritorial controls. The predominant approach, however, is to focus on the "minimum bases of jurisdiction to prescribe law" set out in section 402 of the Restatement (Revised), as the principles of law by which the validity of the pipeline regulations should and can be judged. This article considers the extraterritoriality issue more broadly. The perspective of the article is based in part on modern international relations theory. Using this approach, the article identifies two general problems in international politics that are important in understanding the positions of the two sides in the extraterritoriality controversy, their emotional commitment to these positions, and even their legal arguments. The article also discusses the inadequacies of international legal doctrines currently available for dealing with these problems.

Journal ArticleDOI
TL;DR: Barendt as mentioned in this paper examines British, American, and West German law, and the European Convention on Human Rights and Fundamental Freedoms, with occasional references to the laws of other Western European and Commonwealth countries.
Abstract: Freedom of Speech by Eric Barendt' is the latest in a series of recent philosophical treatments of the subject. The author acknowledges the recently published book by Frederick Schauer, Free Speech: A Philosophical Enquiry, the Williams Committee Report on Obscenity, and articles by Thomas Scanlon and Ronald Dworkin.2 To these earlier studies, Barendt's book adds a valuable emphasis on comparative law. He examines British, American, and West German law, and the European Convention on Human Rights and Fundamental Freedoms, with occasional references to the laws of other Western European and Commonwealth countries. With some success, he attempts to bring order to an unruly combination of constitutional provisions, statutes, and judicial decisions, and he identifies the problems raised by the legal protection of freedom of speech in these four legal systems. The principal interest of his book, however, lies in its account of the arguments currently understood to support freedom of speech. An introductory chapter provides a brief and lucid account of these principles and their limitations, and successive chapters then survey the major areas of controversy over freedom of speech, such as the definition of speech, protection of political activity, libelous publications, and obscenity. By placing philosophical arguments at the centre of his analysis, Barendt raises three questions: How well do these arguments fit existing law in the legal systems that he examines? How well do they fit together into a single theory of freedom of speech? And what are the prospects for an improved theory ?


Book
01 Jan 1987
TL;DR: A veritable feast of 1,500 quotes from more than 1,000 Supreme Court decisions is presented in this paper. But this is the only reference devoted solely to the Supreme Court.
Abstract: A veritable feast of 1,500 quotes from more than 1,000 Supreme Court decisions, this is the first such reference devoted solely to the Supreme Court. Dating from the beginning of the Republic to the present, these excerpts provide a powerful historical overview of the mission and majesty of the Supreme Court. They are topically arranged and cover the legislative, judicial, and executive branches states' rights due process free speech equal rights and freedom of religion. Each entry features the quote -- especially chosen for its profound, compelling, and inspirational nature the name of the case, primary citation, year, and author and the kind of decision (dissenting, concurring, or opinion of the Court).

Journal Article
TL;DR: In this paper, the relevant case law and SEC regulations are reviewed and a synthesis of divergent viewpoints are presented. But, the few judicial decisions on the subject lack uniformity and are not resolved by the Securities and Exchange Commission (the SEC or the Commission) disclosure rules regarding the affirmative duty to disclose.
Abstract: Questions relating to an issuer's obligation to disclose merger negotiations, soft information, and bad news frequently present the corporate lawyer with difficult counseling decisions. These dilemmas are not resolved by the Securities and Exchange Commission (the SEC or the Commission) disclosure rules regarding the affirmative duty to disclose, and the few judicial decisions on the subject lack uniformity. This article reviews the relevant case law and SEC regulations, provides a synthesis of divergent viewpoints, and offers a framework for analysis.

Journal Article
TL;DR: In this article, the issue of whether a school counselor may contact a noncustodial parent to share information without notifying the custodial parent is discussed. But the issue is not addressed in this paper.
Abstract: A persistent issue confronting elementary school counselors is clarification of the noncustodial parent's status regarding access to a child's educational records in the absence of a specific court order or other restraint. The issue becomes a real concern with the passage of the 1974 Family Rights and Privacy Act (FERPA), commonly known as the Buckley Amendment. This federal legislation, part of the sweeping due process reforms of the 1970s, brought public attention to the problem of maintaining and gaining access to records (Gibson, Mitchell, & Higgins, 1983; Hummel & Humes, 1984). The law and regulations do define important terms such as parent , custody , and court order ("Privacy Rights," 1980), but there is room for interpretation, particularly regarding the ethics of confidentiality (Remley, 1985). During the past decade much has been written about the law and its regulations, with an entire issue of Elementary School Guidance & Counseling (Larrabee & Terres, 1985) devoted to the topic. The law and regulations, however, do not address the issue of whether a school counselor, with good reason, may contact a noncustodial parent to share information without notifying the custodial parent. Obviously, this is a highly charged emotional issue and can engender both rancor and litigation. The answer to the dilemma may be found in case law. These points interpret the law and regulations through judicial decisions. An actual case is presented below, including the question posed, a statement of facts, the issues, and a conclusion.


Journal ArticleDOI
TL;DR: The use of written legal opinions to test sociobiological hypotheses with a body of cases extending over 100 years in which judges from all over the United States appear to have been of the unanimous opinion that close genetic and in-law relationships were positively correlated to ongoing reciprocal aid-giving relationships.

Journal ArticleDOI
TL;DR: The phrase "law and economics" has both descriptive and prescriptive aspects as mentioned in this paper, and it is used by those who seek to describe the law by claiming that the common law's major goal is "economic efficiency."
Abstract: The phrase "law and economics"' has both descriptive and prescriptive aspects. Sometimes it is used by those who seek to describe the law by claiming that the common law's major goal is "economic efficiency." Others use it to prescribe, urging judges to create or uphold rules of law which increase wealth, or asking judges to rely more heavily on economics in writing opinions. Professor Cooter's article focuses on the descriptive element;Judge Wald's article focuses on the prescriptive. I shall make a few comments about each and suggest that economics ought to play a real but limited role in judicial decisions. I will begin my comments with an examination of Professor Cooter's arguments.2

Journal ArticleDOI
TL;DR: In this article, a framework for analysis of judicial dissent and examining Justice Sandra Day O'Connor's dissenting opinion in the 1983 abortion decision against that backdrop is presented, highlighting the value appeals characteristic of judicial rhetoric, including personal credibility, emphasis on legal logic, and appeal for reversal of roe V. wade.
Abstract: This essay offers a framework for analysis of judicial dissent and examines Justice Sandra Day O'Connor's dissenting opinion in the 1983 abortion decision against that backdrop. In addition to highlighting O'Connor's distinctive defense of personal credibility, emphasis on legal logic, and appeal for reversal of roe V. wade, the study reveals how effectively the value appeals characteristic of judicial rhetoric—democracy, justice, and logic—serve the motives for judicial dissent.

Book ChapterDOI
01 Jan 1987
TL;DR: The Act of State doctrine has been applied in the United States primarily in the context of foreign expropriations in which a governmental act is alleged to have violated the applicable norms of international law.
Abstract: Publisher Summary This chapter discusses laws on Acts of State. The Act of State doctrine has been applied in the United States primarily in the context of foreign expropriations in which a governmental act is alleged to have violated the applicable norms of international law. As originally formulated in Underbill v. Hernandez, the doctrine provided that “the courts in one country will not sit in judgment on the acts of another done within its territory.” This essentially territorially based conception of State sovereignty and jurisdiction was restricted to circumstances involving property situated in the expropriating State's territory; thus, it left American courts free to inquire into the international legality of foreign expropriations in their purported extra territorial reach, allowing them eventually to deny effect to decrees found wanting at international law. In the later Sabbatino Case, this restriction on the scope of the doctrine was retained even though the Court's only concern was that judicial decisions may restrict executive discretion in the conduct of international relations. The retention of this distinction is somewhat puzzling, however, as the potential for judicial interference with executive policy options would appear just as great where the expropriated property was originally outside the expropriating State's territory.

Book ChapterDOI
01 Jan 1987
TL;DR: It is a recognized principle of international law that committing an internationally wrongful act entails international responsibility as mentioned in this paper, and it has been upheld in numerous judicial decisions of the Permanent Court of International Justice and the International Court of Justice (ICJ).
Abstract: Publisher Summary This chapter discusses legal aspects of internationally wrongful acts. It is a recognized principle of international law that committing an internationally wrongful act entails international responsibility. Although the justification of this principle in international law treatises differs, it has been upheld in numerous judicial decisions of the Permanent Court of International Justice and the International Court of Justice (ICJ). Furthermore, a series of arbitral awards have repeatedly affirmed this principle. The commission of an internationally wrongful act creates a new international legal relationship characterized by legal attributes distinct from those which existed previously. This relationship is established between the subject to which the act or omission is imputable and the subject whose rights have been affected. Thus, the rules relating to this new legal relationship— ascribed as international responsibility—are complementary to the original legal obligation between those subjects. Opinions about the scope and content of the legal relationship created by an internationally wrongful act differ according to whether it is seen only as a foundation for a claim for reparation or whether it also provides for a punitive action against the offending subject.

Journal ArticleDOI
TL;DR: Natural law as discussed by the authors is a generalization of positive and scientific law, and it is defined as "a method that we employ to judge what the principles of individual morality or positive law ought to be".
Abstract: My first task is to define the subject. When I use the term "natural" law, I am distinguishing the category from other kinds of law such as positive law, divine law, or scientific law. When we discuss positive law, we look to materials like legislation, judicial opinions, and scholarly analysis of these materials. If we speak of divine law, we ask if there are any knowable commands from God. If we look for scientific law, we conduct experiments, or make observations and calculations, in order to come to objectively verifiable knowledge about the material world. Natural law-as I will be using the term in this essay-refers to a method that we employ to judge what the principles of individual morality or positive law ought to be. The natural law philosopher aspires to make these judgments on the basis of reason and human nature without invoking divine revelation or prophetic inspiration. Natural law so defined is a category much broader than any particular theory of natural law. One can believe in the existence of natural law without agreeing with the particular systems of natural law advocates like Aristotle or Aquinas. I am describing a way of thinking, not a particular theory. In the broad sense in which I am using the term, therefore, anyone who attempts to found concepts of justice upon reason and human nature engages in natural law philosophy. Contemporary philosophical systems based on feminism, wealth maximization, neutral conversation, liberal equality, or libertarianism are natural law philosophies. They start with assumptions about human nature and what is good for people, and they claim to employ reason to judge the relative justice or injustice of legal practices like slavery, the free market, patriarchy, and socialism. Like the man who was astonished to find that he had been speaking in prose all his life, we who make it our business to resolve differences about questions of morality and justice through the use of reason are surprised to find that we are expounding natural law. Next I should explain what I mean by reason, an ability available in theory to all humanity, however warped it may be in particular individuals or groups. Reason consists of two components: logic and clearheaded perception of reality. The rational mind must possess both qualities. For example, some paranoids have an impressive ability to think