Animus (law)

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Animus (Latin for "mind" or "soul") is a Law Latin term used in a variety of contexts to designate the motivations of a legal person.

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Criminal law

In criminal law, animus nocendi ("intention to harm" [1] ) refers to an accused's guilty state of mind with respect to the actus reus of the crime. It is thus analogous to mens rea , a more commonly used term in common law countries. The term dates back Roman understandings of censorship, where it referred to an author's impermissible intention in writing a literary work. [2]

In Scots law, the term animus malus ("evil intention" [1] ) is sometimes used. [3]

Family law

In family law, animus deserendi refers to one spouse's firm intention to leave the matrimonial home—and hence the marriage. [4] When combined with the "factum of separation," it "constitute[s]" desertion. [5] Proof of desertion, in turn, has been grounds for divorce in some legal systems. [6] [7]

Property law

In property law, animus possidendi ("intent to possess") refers to a person's manifest intention to control an object, and is one of the two elements—along with factum possidendi (the "fact of possession")—required to establish property in an object by first possession. [8]

In both civil and common law, animus revertendi distinguishes an animal in which one may have a property right from a wild animal (which one cannot own) by reference to the animal's habitual return to a person who cares for it. [9] Blackstone describes the doctrine as follows:

The law therefore extends … possession farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he hath animum revertendi. So are my pigeons, that are flying at a distance from their home … and likewise the deer that is chafed out of my park or forest, and is instantly pursued by the keeper or forester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowledge, and do not return in the usual manne[r], it is then lawful for any stranger to take them. [10]

United States constitutional law

In the jurisprudence of the Equal Protection Clause of the United States Constitution, animus designates an improper government purpose in passing legislation. According to Dale Carpenter, the animus doctrine involves "scrutinizing the reasons for government action." [11] If the legislature exhibits bias toward a protected class, the law is unconstitutional regardless whether the law might be justifiable on other grounds. [11] The Supreme Court of the United States defined the concept for the first time in Department of Agriculture v. Moreno (1973), [12] holding that (italics in original):

… if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. [13]

Referring to the concept of animus explicitly later in the same passage, the Supreme Court formulated the doctrine thus in United States v. Windsor (2013):

[The Defense of Marriage Act] seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. [14]

Further reading

Related Research Articles

Family law is an area of the law that deals with family matters and domestic relations.

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In law, possession is the control a person intentionally exercises toward a thing. Like ownership, the possession of anything is commonly regulated by country under property law. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property.

Laissez-faire is an economic system in which transactions between private groups of people are free from any form of economic interventionism deriving from special interest groups. As a system of thought, laissez-faire rests on the following axioms: "the individual is the basic unit in society, i.e. the standard of measurement in social calculus; the individual has a natural right to freedom; and the physical order of nature is a harmonious and self-regulating system."

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<span class="mw-page-title-main">Life, Liberty and the pursuit of Happiness</span> Phrase in the United States Declaration of Independence

"Life, Liberty and the pursuit of Happiness" is a well-known phrase from the United States Declaration of Independence. The phrase gives three examples of the unalienable rights which the Declaration says have been given to all humans by their Creator, and which governments are created to protect. Like the other principles in the Declaration of Independence, this phrase is not legally binding, but has been widely referenced and seen as an inspiration for the basis of government.

The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It mandates that individuals in similar situations be treated equally by the law.

Coverture was a legal doctrine in the English common law in which a married woman's legal existence was considered to be merged with that of her husband, so that she had no independent legal existence of her own. Upon marriage, coverture provided that a woman became a feme covert, whose legal rights and obligations were mostly subsumed by those of her husband. An unmarried woman, or feme sole, had the right to own property and make contracts in her own name.

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<span class="mw-page-title-main">Dower</span> Assets reserved for a wife in case her husband dies

Dower is a provision accorded traditionally by a husband or his family, to a wife for her support should she become widowed. It was settled on the bride by agreement at the time of the wedding, or as provided by law.

<span class="mw-page-title-main">Matrimonial Causes Act 1857</span> 1857 British divorce reform law

The Matrimonial Causes Act 1857 was an Act of the Parliament of the United Kingdom. The Act reformed the law on divorce, moving litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage based on contract rather than sacrament and widening the availability of divorce beyond those who could afford to bring proceedings for annulment or to promote a private Bill. It was one of the Matrimonial Causes Acts 1857 to 1878.

<i>Mortgage Corp v Shaire</i>

Mortgage Corporation v Shaire [2001] Ch 743 is a widely reported English land law case relating to the Trusts of Land and Appointment of Trustees Act 1996. Such a status specifically flowed from an instance of non est factum mortgage fraud where the mortgage lender and the defrauded co-owner wished to accelerate and delay sale respectively. The case is relevant to matrimonial law in that the respective equitable shares in the home awarded to Mrs Shaire and Mr Fox in 1987 matrimonial proceedings were never defined and it fell to the court to define these.

<span class="mw-page-title-main">Abandonment (legal)</span> Relinquishment under law

In law, abandonment is the relinquishment, giving up or renunciation of an interest, claim, civil proceedings, appeal, privilege, possession, or right, especially with the intent of never again resuming or reasserting it. Such intentional action may take the form of a discontinuance or a waiver. This broad meaning has a number of applications in different branches of law. In common law jurisdictions, both common law abandonment and statutory abandonment of property may be recognized.

<span class="mw-page-title-main">Divorce (Insanity and Desertion) Act 1958</span> United Kingdom legislation

The Divorce Act 1958 was an Act of the Parliament of the United Kingdom that modified the law relating to divorce to widen the definition of insanity and alleviate any hardships caused by the ability to divorce on the ground of desertion, as introduced in Matrimonial Causes Act 1937. The Act was based on the recommendations of Royal Commission on Marriage and Divorce, and was introduced immediately after receiving the Royal Assent on 23 July 1958.

This collection of lists of law topics collects the names of topics related to law. Everything related to law, even quite remotely, should be included on the alphabetical list, and on the appropriate topic lists. All links on topical lists should also appear in the main alphabetical listing. The process of creating lists is ongoing – these lists are neither complete nor up-to-date – if you see an article that should be listed but is not, please update the lists accordingly. You may also want to include Wikiproject Law talk page banners on the relevant pages.

<span class="mw-page-title-main">Divorce law in Sweden</span>

Divorce law in Sweden concerns the dissolution of marriage, child support, alimony, custody and the division of property. Divorce restores the status of married people to individuals, leaving them free to remarry. The divorce laws in Sweden are known to be considerably liberal compared to other jurisdictions.

<span class="mw-page-title-main">Matrimonial Causes Act 1973</span> United Kingdom legislation

The Matrimonial Causes Act 1973 is an Act of Parliament of the United Kingdom governing divorce law and marriage in England and Wales.

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.

<span class="mw-page-title-main">Possession (Scots law)</span> Legal concept relating to holding property in Scots law

Possession in Scots law occurs when an individual physically holds property with the intent to use it. Possession is traditionally viewed as a state of fact, rather than real right and is not the same concept as ownership in Scots law. It is now said that certain possessors may additionally have the separate real right of ius possidendi. Like much of Scots property law, the principles of the law of possession mainly derive from Roman law.

Fast-Fish and Loose-Fish is chapter 89 of Herman Melville's 1851 novel Moby-Dick, in which Ishmael, the book's narrator, explains the concept of "Fast-Fish" and "Loose-Fish." If a whale, whether dead or not, is marked by a ship's crew with anything to claim it, such as a harpoon or rope, it is a "fast-fish", that is, it must be left alone by other whalers; if it is not so marked, it is a "loose-fish", which can be claimed by any ship that finds it. The clarity of this doctrine, Ishmael says, prevents disputes from escalating into violence. He describes court cases dealing with disputes between crews of whaling ships, and then extends the concept to society and politics, questioning the concept of ownership and the right to possession.

References

  1. 1 2 Fellmeth, Aaron Xavier; Horwitz, Maurice (2009). Guide to Latin in International Law. Oxford: Oxford University Press. p. 31. ISBN   978-0-19-970889-5. OCLC   656286394.
  2. ↑ Rudich, Vasily (2013). Dissidence and Literature under Nero: The Price of Rhetoricization. London: Routledge. 12ff. ISBN   978-1-134-68089-4. OCLC   919307544.
  3. ↑ Garner, Bryan, ed. (2019). "Malus animus". Black's Law Dictionary (11th ed.). Thomson Reuters. ISBN   9781539229766.
  4. ↑ Bates, Frank (1970). "Animus Deserendi in Constructive Desertion". The Modern Law Review . 33 (2): 144–153. doi: 10.1111/j.1468-2230.1970.tb01261.x . ISSN   0026-7961. JSTOR   1093676.
  5. ↑ Virdi, P. K. (2009). The Grounds for Divorce in Hindu and English Law: (A Study in Comparative Law). Delhi: Motilal Banarsidass. pp. 80–81. ISBN   978-81-208-2453-9.
  6. ↑ Forrest, G. A. (1939). "Desertion as a Matrimonial Offence". The Modern Law Review. 3 (3): 195–201. doi: 10.1111/j.1468-2230.1939.tb00758.x .
  7. ↑ Duncan, William (1972). "Desertion and Cruelty in Irish Matrimonial Law". Irish Jurist. 7 (2): 218. JSTOR   44026580. Desertion for two years was made a ground for a judicial separation (the equivalent of a divorce a mensa et thoro) in England by the Matrimonial Causes Act, 1857.
  8. ↑ Hirokawa, Keith H. (2008). "Property Pieces in Compensation Statutes: Law's Eulogy for Oregon's Measure 37". Environmental Law . 38 (4): 1124. ISSN   0046-2276. JSTOR   43267600.
  9. ↑ Ingham, John H. (1900). The Law of Animals: A Treatise on Property in Animals, Wild and Domestic, and the Rights and Responsibilities Arising Therefrom. Philadelphia: T. & J. W. Johnson. Title I, chapter 1, § 4 (pp. 6–7).
  10. ↑ Blackstone, William. Commentaries on the Laws of England. Book II, Chapter 25.
  11. 1 2 Carpenter, Dale (2013). "Windsor Products: Equal Protection from Animus". The Supreme Court Review. 2013: 186. doi:10.1086/676640. ISSN   0081-9557. S2CID   145738666.
  12. ↑ Pollvogt, Susannah W. (2012). "Unconstitutional Animus". Fordham Law Review . 81 (2): 888.
  13. ↑ Department of Agriculture v. Moreno , 413U.S.528 , 534(1973).
  14. ↑ United States v. Windsor , 570U.S.744 , 769(2013).
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