Academic literature on the topic 'Doctrine of mitigation'

Most state and the federal sentencing guidelines include a “catchall” category of potential mitigators, allowing the capital defendant to put forth evidence, at sentencing, of any issue that might bear on the question of moral culpability. This broad category of potentially mitigating information is sometimes given short shrift, in favor of traditional diagnostic findings. Because death is different from all other punishments in its finality, the mental health evaluator bears a special burden, under the Lockett doctrine, to explore all factors that shaped the defendant's developments. A psychobiographical approach to evaluation is described.

Are water storage and water markets complements or substitutes? This paper examines the conditions under which water storage for drought risk mitigation augments or attenuates water market gains from trade, and conversely, the conditions under which water markets augment or attenuate the value of additional water storage. The analysis is performed in the context of the Prior Appropriations doctrine in a fully appropriated basin. Two stylized examples based on water use at the intensive and extensive margin are provided, along with simulation results for proposed water storage projects and market development in the Yakima Basin in South-central Washington State.

A plea of superior orders in response to charges founded upon violations of the international laws of armed conflict has since 1945 been treated as a plea in mitigation of sentence rather than as a defence, a position founded upon article 8 of the 1945 Charter of the International Military Tribunal at Nuremberg. In 1998 the draft Statute of the proposed permanent International Criminal Court appeared, by article 33, to “restore” superior orders as a defence, a move deprecated by some as an apparent softening of the international legal approach to war crimes in an age in which such violations are all too prominently before the world's scrutiny. In fact both the formerly received “Nuremberg” doctrine and the appearance of a radical change, or reversion, in the 1998 Statute can be argued to be erroneous. It is the contention of this paper that far from advancing a new and stricter doctrine, the Charter of the IMT at Nuremberg correctly applied pre-existing doctrine in extreme and unusual circumstances but was mistakenly taken to have developed a new approach which was then applied with potentially distorting effect for the generality of circumstances. In this view the 1998 Statute has merely recognised the essential doctrine of superior orders as it existed prior to 1945 and which, properly understood, should not have been thought essentially to have been changed even in 1945.

For just war doctrine to apply, the last resort requirement to exhaust all measures short-of-war must be fulfilled. Because of research and policy developments in the last fifteen years, the international community is now equipped with a richer understanding of how wars and atrocities evolve through time, improved precision about trigger points and risk factors that may accelerate that evolution, growing consensus on what prevention and mitigation steps to look for in that process, and new technologies for ascertaining these steps in order to intervene when mitigating action might deflect the escalation. It is thus argued that the responsibility of the international community to intervene in a timely and appropriate fashion has become increasingly clear and inescapable. It is further argued that the alert engagement of civil society in crafting this body of research and policy places a heavy public burden on government leaders to demonstrate that indeed all measures short-of-war have been exhausted. We now have at our collective disposal many more measures to deploy and many more witnesses to raise the alarm. Accordingly, the threshold for declaring that last resort has been reached has now become much higher.

Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about “free will” that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely held folk beliefs about free will—beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation—a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.

The Singapore government since 2000 has stated their goals to have a strong and capable Singapore Armed Forces (SAF). The urgency of having a strong and capable SAF cannot be separated from the multidimensional threats that Singapore has to deal with. China's growing military capability coupled with increased aggressiveness in the South China Sea and relations with two conflicting neighbors are examples of traditional threats facing Singapore. Non-traditional threats, especially terrorism, also haunt Singapore. This article argues that the Revolution in Military Affairs implemented by Singapore is the mitigation of such strategic disadvantage. Through the implementation of the Revolution in Military Affairs which was marked by the acquisition of advanced weaponry technology and followed by changes in military doctrine and organizational adaptation, the SAF has already been transformed into a powerful military in the region.

Modern neuroscience has long expanded beyond the framework of traditional biological and medical sciences that study the central nervous system and human brain. Nowadays researchers aim at exploring the links between the biological processes in the brain and human behavior. There is a growing number of research on social neuroscience investigating the neural basis of social behavior. The progress of such studies is facilitated by application of non-invasive neuroimaging techniques (magnetic resonance imaging, functional magnetic resonance imaging, positron emission tomography, etc.), which provide the data on brain structure and activity in the form of visual images. The task of criminal law is to conceptualize the results of brain studies used as evidence in criminal courts in a number of countries that have also revived discussions about free will and criminal responsibility. According to foreign authors, neurobiological evidence, including the results of brain imaging, is used in courts at various stages of the process, in particular when determining the defendant’s competency to stand trial and in insanity defense. However, more often they appear in criminal cases of serious violent and sexual crimes in order to confirm the diagnosis of a mental or neurological disorder and/ or brain damage of the defendant and thereby justify the mitigation of punishment. Such evidence is often combined with results of other expert examinations and appear to be a part of a wider picture describing the defendant. International studies also show that the courts are cautious in decisions concerning admissibility of brain scan evidence because of uncertainty about its scientific validity, reliability and relevance to the case. Moreover, the very practice of the presence of such evidence in courts is considered as ambiguous. The opponents refer to insufficient validity and reliability of such evidence and the subjectivity of experts while interpreting the results of brain imaging. There are also problems of reliability of expert conclusions when the group data is applied to the individual case considered in court. The opponents also refer to the complexity and interconnectedness of the human brain, the inability to link complex human behavior to a specific brain area not to mention a causal relationship between specific brain area and specific behavior. The progress of neuroscience has also given an impulse to a new wave of discussions on key issues of legal philosophy and criminal law doctrine. The results of some studies are interpreted as evidence on lack of voluntary nature of human actions and the illusion of free will, since the brain sends a signal to act before a person realizes it. In combination with findings concerning links between specific brain structures and aggression, impulsiveness and the ability to control one’s behavior, these data are used as the ground to justify the revision of traditional doctrinal ideas about guilt and criminal responsibility. However, majority of experts who analyze the use of the results of neurobiological studies in criminal law doctrine and practice disagree with these claims. They acknowledge that such research can contribute to a better understanding of the mechanisms of human behavior and influence the doctrinal understanding of legal categories, such as guilt and insanity, but they do object against identification of the mind with the brain. The concepts of free will and responsibility are social constructs, and neurosciences are not able to convince society to abandon them.

The article analyzes the evolution of punishment in Russian criminal law and scientific doctrine. The article considers the dynamics of development and improvement of the definition of punishment in the Soviet and Russian criminal legislation. The refusal of punishment in punishment is analyzed, which is explained by the development of several trends of mitigation of punishment. Changes in many provisions on punishment confirm that this institution has a social and legal necessity and importance for society and the state. Is considered a long process of exclusion from the punishment uncharacteristic of regulations and the formation of the criminal code of legal structure, where the punishment has ceased to be an obligatory consequence of the crime, as embodied and other measures of criminal-legal nature, like legal consequences of the crime. The essence of criminal punishment is recognized as a historically variable category, since it is determined by the objectives of criminal policy implemented by the state. Punishment includes legal restriction of the person, its rights and freedoms, but it is caused by system interaction with other measures of criminal-legal character.

The article analyzes the evolution of punishment in Russian criminal law and scientific doctrine. The article considers the dynamics of development and improvement of the definition of punishment in the Soviet and Russian criminal legislation. The refusal of punishment in punishment is analyzed, which is explained by the development of several trends of mitigation of punishment. Changes in many provisions on punishment confirm that this institution has a social and legal necessity and importance for society and the state. Is considered a long process of exclusion from the punishment uncharacteristic of regulations and the formation of the criminal code of legal structure, where the punishment has ceased to be an obligatory consequence of the crime, as embodied and other measures of criminal-legal nature, like legal consequences of the crime. The essence of criminal punishment is recognized as a historically variable category, since it is determined by the objectives of criminal policy implemented by the state. Punishment includes legal restriction of the person, its rights and freedoms, but it is caused by system interaction with other measures of criminal-legal character.

Este trabalho divide-se em seis grandes tópicos e uma conclusão. A parte introdutória busca situar a teoria do inadimplemento antecipado e seu surgimento no direito inglês, bem como delimitar os objetivos do trabalho, especialmente no que diz respeito à definição da natureza jurídica da teoria do inadimplemento antecipado e à sua aplicabilidade no direito nacional. Para construir as bases fundamentais do raciocínio a ser desenvolvido ao longo do texto, o segundo capítulo trata das noções gerais do direito obrigacional, sobretudo da teoria da obrigação como um processo e dos deveres laterais de conduta. A terceira parte versa sobre a extinção das obrigações em suas formas normal e anômala e, principalmente, as diversas facetas que pode assumir o inadimplemento das obrigações. O quarto capítulo aborda o inadimplemento antecipado, traçando sua origem histórica, sua natureza jurídica e sua classificação nas mais diversas formas (quanto ao sujeito, quanto à imputabilidade, quanto à possibilidade ou não de cumprimento). A quinta parte do trabalho discute os efeitos do inadimplemento antecipado e, primordialmente, a chamada doctrine of mitigation. O sexto capítulo aponta institutos jurídicos similares ao inadimplemento antecipado com a finalidade de definir suas diferenças em relação àqueles. Por fim, o trabalho conclui pela possibilidade de aplicação da teoria do inadimplemento antecipado no direito brasileiro, devendo tal instituto ser reconhecido por doutrina e jurisprudência.<br>This work is divided into six major topics and its conclusion. The introduction aims to situate the anticipatory breach theory, its origin in English law, as well as define the main purpose of the work, especially regarding the definition of the legal nature of the anticipatory breach theory and its applicability under Brazilian law. In order to build the foundations to be developed throughout the work, the second chapter deals with general notions of the law of obligations, mainly the theory of the obligation as a process and the lateral conduct obligations. The third part of this paper deals with the termination of obligations in its normal and anomalous forms and, in particular, with the various facets that the breach of obligations may take. The fourth chapter discusses the anticipatory breach, tracing its historical origin, its legal nature, and especially its classification in various forms (in accordance with the subject, in accordance to responsibility, in accordance with possibility or nor of its performance). The fifth part of the work deals with the effects of anticipatory breach and, primarily, the called doctrine of mitigation. The sixth chapter deals with similar institutions in relation to the anticipatory breach theory, in order to note their differences. Finally, we conclude the work defending the possibility of application of the anticipatory breach theory under Brazilian law, aiming that doctrine and jurisprudence should recognize it.

Den skadeståndsrättsliga principen om den skadelidandes skyldighet att begränsa sin skada ärväl känd och vedertagen i svensk rätt. Principen åberopas ofta som invändning iskadeståndstvister av alla slag, och har därmed stor praktisk betydelse. Principens köprättsligaoch försäkringsrättsliga motsvarigheter är generöst behandlade i doktrinen. På denskadeståndsrättsliga sidan förhåller det sig annorlunda – det här är första gången som ämnetblir tillägnat ett eget arbete i Sverige. Det finns många rättsfall där skadebegränsningsskyldigheten aktualiseras, men på grund avdomskälens utformning är rättsfallens värde som vägledning begränsat. Jag anser emellertid attuppmärksamheten inte bör överfokuseras på dessa. Intar man ett framåtblickande perspektiv,finns det gott om material och idéer att hämta från den övriga civilrätten, från rättsekonominoch – inte minst – från utlandet. Arbetets strukturella och metodologiska ramverk är utformatså, att största möjliga nytta kan dras av främmande källor utan att en djupgående (och oftastointressant) komparativ utredning av dessa källor behöver göras. Det huvudsakliga syftet med undersökningen var att definiera skadebegränsningsprincipensansvarsgräns. Med hänsyn till framställningen omfattning, hade det inte varit möjligt att göragrundliga utredningar av enskilda delproblem. Istället är arbetet fokuserat på att utrönaallmängiltiga riktlinjer, tankemönster och ledtrådar, dels för skadebegränsningsbedömningen isig, och dels för den tänkbara rättsutvecklingen. Ett flertal sådana riktlinjer har kunnatdefinieras, något utspridda över principens tillämpningsområde, och ibland även i sammanhangdär det inte är uppenbart att det är skadebegränsningshänsyn som styr. Samtidigt har åtskilligasystemiska problem uppdagats såväl i principens tillämpning som i den underliggandenormbildningen. Jag har ödmjukt lagt fram några lösningsförslag, med ändamålet att främja enmer rättssäker tillämpning av principen, dels på grundval av gällande rätt, och dels på grundvalav den tänkbara rättsutvecklingen på området.<br>The doctrine of avoidable loss is a generally recognized principle in Swedish law. The doctrine is often invoked in damage claim disputes of all kinds, and is therefore important in practice. There is plenty of legal literature where the doctrine is treated in the context of sales law and insurance law. On the tort law side, however, there is nothing – this is the first dedicated work on the subject in Sweden. There are many tort cases where the question of avoidable loss is actualized, but due to the way the courts articulate the grounds for their rulings, the cases provide little guidance for the future, and therefore have little value as precedent. This is not necessarily an obstacle to the study. On the contrary, when looking outwards, I have found a wealth of ideas and study material in other areas of civil law, in law and economics, and in foreign law. The structural and methodological framework of the thesis was designed to allow for extraction of material from foreign sources without needing to conduct a thorough (and often uninteresting) comparative study. The main purpose of the investigation was to define the boundaries of the claimant’s liability as imposed by the doctrine. Considering the limited scope of the thesis, it would not have been possible to deconstruct the subject into details and conduct thorough investigations of those. Instead, the work was focused on determining general guidelines, thought patterns and clues; both de lege lata and de lege ferenda. Multiple such guidelines could be defined in various contexts where the doctrine is applied, but also, interestingly, in certain contexts where it is not obvious that considerations of avoidable loss are decisive. Multiple systemic issues have also been found, both in the application of the doctrine and in the underlying norms. I have humbly put forward several suggestions on how these issues could be alleviated to promote legal certainty in the doctrine’s application, both today and in the future.

The doctrine of mitigation in contract law limits the recovery of damages available to the innocent victim of a breach of contract to cover only those losses that would have been incurred had the promisee acted reasonably in avoiding or not exacerbating the losses caused by breach. The doctrine has troubled ‘promise theorists’ who fail to see why the guilty party should not in such circumstances be responsible for all the losses that, after all, her own wrongdoing has caused. Charles Fried attempted to accommodate the doctrine by linking promise to the principle of altruism but that attempt has faced important criticisms; which reflect a deeper failure on Fried’s part to perceive that contractual relations involve an invocation of a ‘thinner’ type of trust than is usually found when promises take place in the context of close or intimate relationships. This chapter claims that the doctrine only makes sense if we recognize that it reflects the interaction between the promise principle and a principle of fairness that we find as a matter of first-order moral reasoning. On this view, contract law mirrors what we find in promissory morality (broadly conceived). It is another example of a ‘composite doctrine’ reflecting the interaction between multiple moral concerns.

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on the disposal of property on death discusses the following: the general characteristics of wills; the doctrine of incorporation by reference; the origins of the secret trust; the difference between fully and half-secret trusts; the three elements of a secret trust: intention, communication, and acquiescence; mutual wills; donatio mortis causa (death-bed gifts); and the rule in Strong v Bird. All four of these doctrines provide exceptions to the strict rules governing wills and provide another example of equity mitigating the harshness of the law.

This chapter considers the nature of constitutionalism. It begins by examining accounts of constitutionalism that present the doctrine as a constraint on state power. These understandings of constitutionalism, negative constitutionalism, rest on accounts of the state that present that institution as a threat to its people, and constitutions as sets of rules that are imposed on, and constrain, the state, mitigating this danger. This understanding of constitutionalism misses an important aspect of the doctrine and rests on a misleading account of states and constitutions. Constitutionalism requires the creation of an effective and competent set of state institutions; it has a positive dimension. In contrast to negative constitutionalism, positive constitutionalism recognizes that the state exists to benefit its people, and the constitution is that set of rules that empowers and constructs state institutions. The account of constitutionalism provided in this chapter sets the agenda for the rest of the book. It locates constitutionalism within constitutional theory, and examines the connection between constitutionalism and the principles discussed in the following chapters.

Debates continue over the significance of reverberating effects of an attack during armed hostilities and how they implicate proportionality assessments. Some argue commanders bear an obligation to integrate consideration of such effects in their proportionality judgments; others argue that such effects are too speculative. But this debate reveals the vital role of process in attack judgments. That process will ideally provide commanders with information related to judgments that seek to ensure the balance between military necessity and humanity, relying on battle-staff experts working through a doctrinal process to filter and refine such information. In this chapter, we suggest a new staff principal: the civilian risk mitigation expert. Such an expert will contribute to expanding the commander’s aperture related to civilian risk considerations and better enable the commander to foresee and consider all attack effects, thereby enhancing both civilian protection and the legitimacy of attack judgments.

This chapter examines categories of culpability recognised by international criminal courts for attributing criminal responsibility for system crimes to individuals in different institutional contexts: first, modes of participation doctrines, by which international criminal courts connect individuals to the commission of crimes; and second, grounds for excluding responsibility and desert-based mitigating factors, by which international criminal courts exclude the responsibility or mitigate the punishment of individuals in light of the situational pressures of their social contexts. Critically examining these categories, the chapter reveals a tendency on the part of international criminal courts to selectively contextualise the behaviour of the defendants on trial for the purpose of determining their culpability—demonstrating greater concern for identifying links between individuals and system crimes than attempting to understand how individuals may be acculturated into violence by situational pressures stemming from the collective and systemic dimensions of the mass atrocity contexts in which they operated.

This chapter examines the entitlement of a claimant to recover damages in respect of a breach of contract committed by the defendant, and is organized as follows. Section 2 discusses the different measures of damages that can be awarded, while Section 3 analyses the performance interest. Section 4 examines the circumstances in which a claimant can seek damages based on his ‘reliance’ losses rather than his performance interest, while Section 5 discusses the circumstances in which damages may be awarded to protect the claimant’s ‘restitution’ interest. Section 6 examines the entitlement of a claimant to recover damages in respect of non-pecuniary losses, particularly ‘mental distress’. Section 7 considers the general rule that damages are assessed as at the date of breach and the exceptions to that rule, while Section 8 considers the various doctrines which the courts use in order to keep liability within acceptable bounds. These include remoteness, mitigation, and contributory negligence. Section 9 examines the circumstances in which a defendant can be ordered to account to a claimant for the profits that he has made from his breach of contract. Section 10 looks at the possibility that exemplary damages might play a role in breach of contract cases. The chapter concludes, in Sections 11 and 12, with a discussion of agreed damages clauses (and related clauses) and their legal regulation.

This chapter examines the entitlement of a claimant to recover damages in respect of a breach of contract committed by the defendant, and is organized as follows. Section 2 discusses the different measures of damages that can be awarded, while Section 3 analyses the performance interest. Section 4 examines the circumstances in which a claimant can seek damages based on his ‘reliance’ losses rather than his performance interest, while Section 5 discusses the circumstances in which damages may be awarded to protect the claimant’s ‘restitution’ interest. Section 6 examines the entitlement of a claimant to recover damages in respect of non-pecuniary losses, particularly ‘mental distress’. Section 7 considers the general rule that damages are assessed as at the date of breach and the exceptions to that rule, while Section 8 considers the various doctrines which the courts use in order to keep liability within acceptable bounds. These include remoteness, mitigation, and contributory negligence. Section 9 examines the circumstances in which a claimant can recover what is known as ‘negotiating damages’ or the defendant can be ordered to account to a claimant for the profits that he has made from his breach of contract. Section 10 looks at the possibility that exemplary damages might play a role in breach of contract cases. The chapter concludes, in Sections 11 and 12, with a discussion of agreed damages clauses (and related clauses) and their legal regulation.