Amicus Curiae

Full issue

Michael Palmer — Mon, 04 Nov 2024 00:00:00 +0000

Editor's introduction

Michael Palmer — Mon, 04 Nov 2024 00:00:00 +0000

The Advocate Lecture

Sir Robin Knowles — Mon, 04 Nov 2024 00:00:00 +0000

Given on 14 March 2024 at Lincoln’s Inn

What’s in a Name? Children’s Rights and Legal Voice within Administrative and Juridical Procedures of Recognition of Same-Sex Filiation

Alice Sophie Sarcinelli, Monika Weissensteiner — Mon, 04 Nov 2024 00:00:00 +0000

This performative text, consisting of writing and visualizations, explores children’s voices within court proceedings connected to the legal recognition of intended mothers within lesbian-parented families. The research used long-term ethnographic observations and biographical interviews focused on French and Italian families from the “activist generation” who devoted their efforts to obtaining reproductive and family rights. The article provides a critical account of the implementation of Article 12.2 of the United Nations Convention on the Rights of the Child 1989 (UNCRC)—that is the right to be listened to in judicial and administrative proceedings affecting children. Our main argument is that, in contrast to the intention of Article 12.2 of the UNCRC, children are given a more symbolic than substantial voice in court proceedings and administrative procedures. The text situates children’s voices both in the wider context and in everyday life. Drawing on ethnographic research data, we show where and to what extent children’s voices emerge or, on the contrary, are silenced.

Keywords: same-sex parenting; filiation; children’s rights; ethnography; creative writing; visual methods; performative text; Euro-American kinship; Italy; France.

Children’s Rights in the Early Childhood Education Curriculum and Activity Book in Türkiye

Nejla Tugcem Sahin Bayik, Ceyda Durmus — Mon, 04 Nov 2024 00:00:00 +0000

This research evaluates the representation of children’s rights in the Early Childhood Education curriculum and Activity Book in Türkiye. Content analysis was used to assess the scope, depth, and frequency of children’s rights-related learning achievements in both the curriculum and the Activity Book, revealing that these achievements do not explicitly emphasize children’s rights in areas such as cognitive, language, and motor development. However, 11 out of 17 social-emotional development objectives and 116 activities indirectly addressed children’s rights. The research suggests a need for the explicit inclusion of fundamental rights in the curriculum and the Activity Book, tailored to children’s age, enhancing skills in conflict resolution, safety awareness, empathy, and opposition to rights violations.

Keywords: early childhood education; children’s rights; human rights; content analysis.

What Have Introductory Books on Legal Reasoning Ever Done for Us?

Geoffrey Samuel — Mon, 04 Nov 2024 00:00:00 +0000

The purpose of this article is to investigate, and to review, a number of recent introductions to law with the emphasis being on those introducing students to legal reasoning. The investigation will have as its focus not just reasoning methodology but equally the ontological and epistemological foundations upon which the reasoning is based. The investigation will be comparative in its orientation; it will examine, in particular, works from common lawyers and French jurists, with references also to books produced by Roman law specialists (Romanists). It will show that many introductions are based on an ontological foundation that emphasizes rules—the rule model—and that, with regard to some of the introductory books, this emphasis has engendered what is arguably a simplistic view of legal knowledge and method. Are such books, it might be asked, epistemologically reliable? To help answer this question, another comparative orientation to be undertaken is to examine some introductory works in the social sciences in order to see not only how these works may differ in their approach to knowledge and methodology but also how methodological discussions in the social sciences could be valuable for lawyers.

Keywords: analogy; epistemology; introductions; logic; ontology; perception; rule model; syllogism.

The Conflicting Categorization of Kings and Chiefs in Ghana

Justis Sir Dennis Adjei — Mon, 04 Nov 2024 00:00:00 +0000

This article aims to explore the historical development and contemporary role of the chieftaincy institution in Ghana, highlighting its enduring significance and adaptability. The institution of chieftaincy has been with the people of Ghana for centuries. Chiefs, now known as traditional rulers, are distinct from political rulers. The laws of Ghana require chiefs to maintain neutrality by forbidding their engagement in active politics. Chiefs are royals who have been validly nominated, elected, or selected by their respective kingmakers to be enstooled or enskinned according to the relevant customary law and usage. When Europeans came to Africa to trade, chiefs governed independent states, each with its own laws, courts, police, and military. The chieftaincy institution is organized hierarchically, ranging from the lowest rank to the apex, and among the Asantes, the Asantehene is the apex. Before 1901, when the British colonized the Asantes, the Asantehene served as the political, executive, and legislative head of the people of the Asante Kingdom.

The Asante Kingdom covers the Ashanti Region, Ahafo Region, parts of the Bono and Bono East Regions, and a paramountcy each in Ghana’s Eastern and Oti Regions. The traditional capital of the Asante Kingdom, Kumasi, was initially at Kwaman. In the 1670s, Chief Osei Tutu from the Oyoko Abohyen Dynasty became the chief of Kwaman after succeeding his late uncle Nana Obiri Yeboah, who reigned from 1640 to 1680 and united all the Asante chiefdoms, which were independent and had their political autonomy. The occupants of the Golden Stool are designated as kings and have held the title to this day. Although the British succeeded in changing the name of some kings to paramount chiefs, they failed to change the name of the royals responsible for the nomination, election or selection of a person to be enstooled or installed as an Asantehene, paramount chief or chief, who are still called the kingmakers.

Keywords: Asante Kingdom; Asantehene; enstooled; fetish-priest; Gold Coast; golden stool; kingmakers; Oyoko clan; paramount chief; traditional ruler.

Equity in Tax—All Change after 1873?

Chris Thorpe — Mon, 04 Nov 2024 00:00:00 +0000

Until the late 19th century, equity and common law courts were separate. Tax courts emerged from equity, and today equitable principles and maxims govern the tax legislation, as well as His Majesty’s Revenue & Customs guidance and the tribunals. Even though the equity and common law courts “fused” in 1873, there has only ever been one law: common law tempered by equity. Only the courts, remedies and procedures were different prior to 1873 (though a unified Court of Exchequer with equity and common law jurisdiction existed before 1841). The law was already a single entity by the late 19th century. There was no fusion of actual laws in 1873, only of courts and procedure. Equity already moderated tax law, with beneficial ownership being all that mattered for tax purposes then and today.

Keywords: equity; common law; fusion; tax; beneficial ownership; Supreme Court of Judicature Act 1873.

Zhang Wanhong (张万红), 1976-2024

Peng Ding, Wei Gao, Zhong Huang, Hanxu Liu — Mon, 04 Nov 2024 00:00:00 +0000

Amicus Curiae is pleased to republish below a memorial note commemorating the life and work of the very distinguished Chinese legal scholar Professor Zhang Wanhong, of Wuhan University. Professor Zhang passed away earlier this year. The note came to our attention in The China Collection (formerly Chinese Law Prof Blog) an important forum for posting news and other materials on China’ s legal development. We thank the authors for kindly giving Amicus Curiae permission to republish the commemorative note.

News and Events

Eliza Boudier — Mon, 04 Nov 2024 00:00:00 +0000

Can Historical Jurisprudence Inform the Artificial Intelligence and Law Debate?

Geoffrey Samuel — Mon, 04 Nov 2024 00:00:00 +0000

The publication of a monograph by Dr Luca Siliquini-Cinelli on the history of scientia iuris in which he argues that law is a constructed form of knowledge that differs from experience is not just an important and very learned contribution to historical jurisprudence. The book’s thesis is also making an important contribution to the debate about the impact, and probable future impact, of artificial intelligence (AI) on law, legal thought and legal reasoning. In critically reviewing the book, this essay will briefly indicate how and why Dr Siliquini-Cinelli’s book is establishing a fundamental relationship between historical jurisprudence (understood as the history of legal thought) and AI.

Keywords: artificial intelligence (AI); epistemology; legal singularity; map; model; philosophy; rule-theorist; territory.

The (In)efficiency and (Un)certainty of Non-propositional Structures of Reality … or, Adventures in Philosophy of Understanding

Robert Herian — Mon, 04 Nov 2024 00:00:00 +0000

This article critically discusses understanding, certainty and efficiency in relation to juridical and jurisprudential contexts. Understanding is an undertheorized topic in law and jurisprudence, despite philosophy and epistemology addressing it at some length in recent years. The focus, therefore, is on understanding-in-law (or understanding as a cognitive function of the law) rather than understanding-of-law, which is an exceedingly well-trodden path in doctrinal, critical and philosophical legal work. The article acknowledges that this branch of epistemology is perhaps new ground for legal academics, and thanks to Luca Siliquini-Cinelli’s landmark book, Scientia Iuris, the article is a response to his thesis that law’s regulatory function has grown in recent decades to embrace and embody knowledge while voiding experience. And while this leads Siliquini-Cinelli to the conclusion that law is a matter only of knowledge, not of experience, the article raises questions about what dwells cognitively between poles of knowledge and experience, and how we can take from or define a place for understanding between poles of knowledge and experience. It also explores the role of certainty and efficiency in shaping understanding in law and beyond, with understanding ultimately defined as a grasping of the structures of the objects of law, different from and in contrast to legal knowledge.

Keywords: understanding; certainty; knowledge; efficiency; law.

Law without Lawyers, Lawyers without Law

Joshua Neoh — Mon, 04 Nov 2024 00:00:00 +0000

Luca Siliquini-Cinelli thinks that there can be law without lawyers. American legal realism thinks that there can be lawyers without law. The truth is perhaps somewhere in between. Law forces individuals to fit into categorical rules. Focusing on its Procrusteanism leads one to imagine the possibility of law without lawyers: law is a set of rules, albeit a complex set, that can be applied consistently to a whole array of situations. But law can also take on shifting shapes and forms to suit the circumstances. Focusing on its Proteanism leads one to imagine the possibility of lawyers without law: law is just whatever lawyers make it out to be. Perhaps law is somewhere between Procrustean and Protean. Therefore, Siliquini-Cinelli and American legal realism may, each, be half-right.

Keywords: legal realism; law; lawyers; logic; knowledge; experience; Holmes.

Symposium on Scientia Iuris

Luca Siliquini-Cinelli — Mon, 04 Nov 2024 00:00:00 +0000

In this reply, I express my gratitude to Amicus Curiae for hosting a symposium on my new book—Scientia Iuris: Knowledge and Experience in Legal Education and Practice from the Late Roman Republic to Artificial Intelligence (Springer, 2024)—as well as to the symposium’s guest authors for their insightful contributions. In so doing, I also engage with their comments on my analysis and argument.

Keywords: scientia iuris; knowledge; experience; legal education; legal practice.

The Need to Update the Equality Act 2010

Tetyana (Tanya) Krupiy — Mon, 04 Nov 2024 00:00:00 +0000

The use of artificial intelligence (AI) to produce decisions about individuals can result in discrimination. Despite the fact that the employment of AI as part of the decision-making process is growing in the United Kingdom, there is limited literature examining gaps in legal protection in the Equality Act 2010 that the employment of AI gives rise to. This article identifies what assumptions contained within a number of provisions of the Equality Act 2010 result in this legislation having gaps in legal protection in the context of the use of AI. It proposes a number of solutions.

Keywords: Equality Act 2010; discrimination; artificial intelligence; digital; algorithmic; decision-making.

A Research Agenda for Administrative Law edited by Carol Harlow

Patrick Birkinshaw — Mon, 04 Nov 2024 00:00:00 +0000

Legal Aid and the Future of Access to Justice by Catrina Denvir, Jacqueline Kinghan, Jess Mant and Daniel Newman

Emma Cooke — Mon, 04 Nov 2024 00:00:00 +0000

Arbitration and Mediation in Nineteenth-Century England by Francis Calvert Boorman and Rhiannon Markless

Ling Zhou — Mon, 04 Nov 2024 00:00:00 +0000