Logic for Lawyers
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Recent papers in Logic for Lawyers
Conflicts of rules occur when it is possible that two or more rules attach incompatible legal consequences to a case. Such conflicts can be conflicts of imposition, where two rules impose incompatible facts upon the world, or they can be... more
Conflicts of rules occur when it is possible that two or more rules attach incompatible legal consequences to a case. Such conflicts can be conflicts of imposition, where two rules impose incompatible facts upon the world, or they can be conflicts of compliance, where two rules demand incompatible behavior from one and the same agent. These conflicts can occur between rules of the same system, but equally between rules of different (legal) systems. International law is not excluded from this development, and is in fact in many ways particularly prone to such rule conflicts. To deal with these conflicts, it is often necessary to make exceptions to one or more of the rules that are involved in the conflicts. One major purpose of this contribution is to investigate which techniques logic has on offer to deal with conflicts between rules and the exceptions that are needed in that connection. A second major purpose of the present contribution is to see what logic can offer us as techniques to avoid rule conflicts. If only one of two conflicting rules is applicable to a case, there is no conflict. Although logic can provide us with techniques to avoid and to handle conflicts of rules, it cannot make the decisions for us. The knowledge which techniques are available only gives us an indication of what is possible. Next to that we need a view on what is desirable, and this view requires the study of law, politics, international relations and morality.
Teaching material for law students
October 14-15 saw the University of South Africa host the Lawyers as Peacemakers Conference which was attended by Local and International Lawyers, Judges, Academics and other professionals. The two-day conference saw these influential... more
October 14-15 saw the University of South Africa host the Lawyers as Peacemakers Conference which was attended by Local and International Lawyers, Judges, Academics and other professionals. The two-day conference saw these influential speakers focus mainly on one thing: The Great task of Re-Humanising the Law.
As Prof Faris stated in his Opening Address, Quoting Chief Justice Warren Burger, he said of Lawyers that “…We tend to forget that we ought to be healers of conflicts.” And thus the tone of the conference was struck. How to bring the essence of Indivisible human dignity and respect back to the practice of Law. These were no idle statements, backed up by two days of powerfully persuasive, frank and informative talks.
Just as in days gone by the world was ruled by the over-arching power of the feudal system, which eventually, and inevitably gave way to the internationally accepted power of the rule of Law, now practiced globally. It was explained how the Law itself, like almost everything else, is evolving, and must keep up with the needs of the society that it seeks to serve. Just as our Justice system today, grew and emerged for a society which had literally ‘grown-out’ of the feudal system, so now, more civilized systems are emerging for the new needs of a Global and Local society.
Alternative Dispute Resolution (ADR) is a set of processes through which disputes are handled and resolved without having to resort to painful, and often damaging litigation, while still maintaining all the power and authority of the legal system. These practices are not only theoretical, but actively practiced around the world today to great effect and social benefit. These practices are the next wave in the evolution of truly Democratic Lawyering. These are Non-Adversarial, and Restorative Justice, Therapeutic Jurisprudence, The Integrative Law Movement, and Collaborative Law. These are in a nutshell, to put people, their best interests and society back at the centre of law, rather than rampant and ineffectual punishment regimes that actually create more repeat offenders than they rehabilitate.
The Keynote Address was delivered by South Africa’s own, Judge Lebotsang Bosielo (President of the Supreme Court of Appeal). He presented an immense talk to the conference on Restorative Justice and asked the question of its viability for practical implementation. He explained some of the challenges facing such a radical shift in Judicial practices. A punishment centred society, he explained, which places all of its energy and emphasis on the criminal and denigrates the victim to a lower standard of importance makes the task of forgiveness, reintegration and reconciliation difficult in the extreme.
“The African model of justice (Ubuntu and Customary Law) is not vengeance orientated – it is restorative in nature. Ubuntu; Love, empathy, compassion and selflessness. Unity thinking as opposed to duality-thinking. More prisons are not, and will never be the answer to violent crime in South Africa. To build more is an act of desperation in the face of an out-dated and ineffectual Adversarial justice system.”
- Judge Bosielo, in his Keynote Address to the
Lawyers as Peacemakers Conference
These powerful sentiments were echoed in the voice of Judge Peggy Hora of the United States. She shared the alarming statistic that although America only accounts for 5% of world Population, it accounts for 20 – 50 % of all the world incarcerated peoples. She said that South Africa is a perfect model for the implementation of Problem-Solving Courts (Like Drug Courts etc.) and active Restorative Justice, as Ubuntu and Unity thinking are already integrated into many of South Africa’s diverse cultures and our Constitution. These problem solving courts have already saved hundreds of millions of dollars in the United States to the legal system, private citizens and those effected by these crimes. The follow-up treatments of drug courts also greatly reduce the number of repeat offenders and de-clog the general courts for other matters. South Africa’s Constitution itself calls for the practice of Ubuntu through customary Law which highlights the Restorative nature good justice.
“Mindful Lawyering” was shown to be a truly practical step towards to happier and better protected society. It was alarming in the extreme how many lawyers end up leaving their chosen profession in desperate exhaustion, unaware that other options are open to them. Options that can benefit and protect not only their clients, but all those wounded by the wrong-doings they are set to resolve.
Amanda Lamond, founder of the Centre of Integrative Law in South Africa, is one such bright light that can be seen to be turning the tide on ineffectual and damaging lawyering. As she said, “We are not here to change the law, just the bits around how the law is implemented and how it interacts with society.” She stated that the call to be Peacemakers, was essentially a Spiritual one.
Ms Kim Wright shared her experiences of how she not only became involved in the movement, but is actively the Mother of the movement towards Integrative Law. This statement was not without immense precedence as all those in attendance were invited by her, and the title of the conference itself was taken from her ground breaking book “Lawyers as Peacemakers”. It is difficult to fully express her tireless efforts not only to bring Integrative Law into the global dialogue, but also to connect so many of the emerging groups and organisations who share the same core philosophy of unity, dignity and respect. “Bringing the tribe together.”
This was spoken about too by Judge Bosielo on the first day of the conference when he spoke on the Viability of Restorative Justice, stating: “…why we as a civilized society cannot resist the temptation to stoop to the level of the offender… Vindictive retribution as general and individual deterrence [of violent crime] when we should be building bridges aimed at the healing and restoration of fractured relations.”
In conclusion: The conference raised potent and unavoidable questions not only to the implementation of societally beneficial legal practices, but it also posed a question to us each as individuals. Do we, in ourselves, think an act in ways that promote and actively live up to our highest integrity, beliefs and ethical standards?
As Prof Faris stated in his Opening Address, Quoting Chief Justice Warren Burger, he said of Lawyers that “…We tend to forget that we ought to be healers of conflicts.” And thus the tone of the conference was struck. How to bring the essence of Indivisible human dignity and respect back to the practice of Law. These were no idle statements, backed up by two days of powerfully persuasive, frank and informative talks.
Just as in days gone by the world was ruled by the over-arching power of the feudal system, which eventually, and inevitably gave way to the internationally accepted power of the rule of Law, now practiced globally. It was explained how the Law itself, like almost everything else, is evolving, and must keep up with the needs of the society that it seeks to serve. Just as our Justice system today, grew and emerged for a society which had literally ‘grown-out’ of the feudal system, so now, more civilized systems are emerging for the new needs of a Global and Local society.
Alternative Dispute Resolution (ADR) is a set of processes through which disputes are handled and resolved without having to resort to painful, and often damaging litigation, while still maintaining all the power and authority of the legal system. These practices are not only theoretical, but actively practiced around the world today to great effect and social benefit. These practices are the next wave in the evolution of truly Democratic Lawyering. These are Non-Adversarial, and Restorative Justice, Therapeutic Jurisprudence, The Integrative Law Movement, and Collaborative Law. These are in a nutshell, to put people, their best interests and society back at the centre of law, rather than rampant and ineffectual punishment regimes that actually create more repeat offenders than they rehabilitate.
The Keynote Address was delivered by South Africa’s own, Judge Lebotsang Bosielo (President of the Supreme Court of Appeal). He presented an immense talk to the conference on Restorative Justice and asked the question of its viability for practical implementation. He explained some of the challenges facing such a radical shift in Judicial practices. A punishment centred society, he explained, which places all of its energy and emphasis on the criminal and denigrates the victim to a lower standard of importance makes the task of forgiveness, reintegration and reconciliation difficult in the extreme.
“The African model of justice (Ubuntu and Customary Law) is not vengeance orientated – it is restorative in nature. Ubuntu; Love, empathy, compassion and selflessness. Unity thinking as opposed to duality-thinking. More prisons are not, and will never be the answer to violent crime in South Africa. To build more is an act of desperation in the face of an out-dated and ineffectual Adversarial justice system.”
- Judge Bosielo, in his Keynote Address to the
Lawyers as Peacemakers Conference
These powerful sentiments were echoed in the voice of Judge Peggy Hora of the United States. She shared the alarming statistic that although America only accounts for 5% of world Population, it accounts for 20 – 50 % of all the world incarcerated peoples. She said that South Africa is a perfect model for the implementation of Problem-Solving Courts (Like Drug Courts etc.) and active Restorative Justice, as Ubuntu and Unity thinking are already integrated into many of South Africa’s diverse cultures and our Constitution. These problem solving courts have already saved hundreds of millions of dollars in the United States to the legal system, private citizens and those effected by these crimes. The follow-up treatments of drug courts also greatly reduce the number of repeat offenders and de-clog the general courts for other matters. South Africa’s Constitution itself calls for the practice of Ubuntu through customary Law which highlights the Restorative nature good justice.
“Mindful Lawyering” was shown to be a truly practical step towards to happier and better protected society. It was alarming in the extreme how many lawyers end up leaving their chosen profession in desperate exhaustion, unaware that other options are open to them. Options that can benefit and protect not only their clients, but all those wounded by the wrong-doings they are set to resolve.
Amanda Lamond, founder of the Centre of Integrative Law in South Africa, is one such bright light that can be seen to be turning the tide on ineffectual and damaging lawyering. As she said, “We are not here to change the law, just the bits around how the law is implemented and how it interacts with society.” She stated that the call to be Peacemakers, was essentially a Spiritual one.
Ms Kim Wright shared her experiences of how she not only became involved in the movement, but is actively the Mother of the movement towards Integrative Law. This statement was not without immense precedence as all those in attendance were invited by her, and the title of the conference itself was taken from her ground breaking book “Lawyers as Peacemakers”. It is difficult to fully express her tireless efforts not only to bring Integrative Law into the global dialogue, but also to connect so many of the emerging groups and organisations who share the same core philosophy of unity, dignity and respect. “Bringing the tribe together.”
This was spoken about too by Judge Bosielo on the first day of the conference when he spoke on the Viability of Restorative Justice, stating: “…why we as a civilized society cannot resist the temptation to stoop to the level of the offender… Vindictive retribution as general and individual deterrence [of violent crime] when we should be building bridges aimed at the healing and restoration of fractured relations.”
In conclusion: The conference raised potent and unavoidable questions not only to the implementation of societally beneficial legal practices, but it also posed a question to us each as individuals. Do we, in ourselves, think an act in ways that promote and actively live up to our highest integrity, beliefs and ethical standards?
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