Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology of law (...) by Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges - cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification. Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories or nihilistically naive theories A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity. (shrink)

World Trade Organization (WTO) Agreement includes the Annex 2 Dispute Settlement Understanding (DSU) that reveals with WTO dispute settlement rules and procedures. The Dispute Settlement Body (DSB) is hereby established to administer these rules and procedures. The article analyses the problematic issues of the direct effect of the DSB decisions in the European Union (EU) legal order. ECJ concluded that an individual does not have the right to challenge, the incompatibility of Community measures with WTO rules, (...) even if the DSB had previously declared the EU legislation to be incompatible with those rules. The position of the ECJ is based on the WTO dispute settlement system specifics—the importance of the negotiation between the parties, even after the DSB decision-making and lack of reciprocity, which means that major commercial partners of the EU does not recognize the direct effect of DSB decisions. (shrink)

The principle of publicity is one of the fundamental principles of property law: property rights should be made public in order to inform third parties about the existence of the property right and its holder and thereby to foster legal certainty and efficiency. The publicity of ownership in immovable property is achieved through registration of ownership in the public register. However, the problem arises because of the unavoidable discrepancies between the data contained in the public register and the factual (...) situation. Different states choose different models to solve the practical problems arising out of the aforementioned discrepancies. On the one hand, Lithuania belongs to the group of states that implement the so-called declaratory system of registration, i.e. the transfer of ownership is based on an agreement or other legal grounds and the registration is not mandatory but provides the transfer with a third-party effect. This can be seen as a proof of priority of a factual situation over the registered data. On the other hand, Lithuanian laws provide the data of the register with some positive reliance, i.e. third parties are not only protected from claims arising out of unregistered rights (negative reliance), but they can also rely on the transcripts in the register. This is especially true in the case of bona fide transferee of immovable property which with some minor exceptions acquires ownership even from a non-owner, if the latter honestly relied on the data of the register. This regulatory framework is further adopted and transformed by the case law of the Lithuanian courts. The analysis of the latter shows that courts are inclined to rely more on the factual situation and easily deny the meaning of the registered rights. In various ways, the concept of the bona fide transferee is restricted and there are instances of positive duties ascribed to them. Besides, the existing case law demonstrates equivocal attitude towards the legal effects of registered data. Such tendencies of case law may hinder the rule of positive reliance and cause greater legal uncertainty. (shrink)

The aim of the paper is to present the diachronic changes taking place in legal languages and discuss whether the translators, who for some reason use as an equivalent an obsolete term, may produce a target text which is communicatively ineffective. The research methods applied encompass: the parametric approach to the interlingual comparison of legal terminology for translation purposes, the analysis of pertinent literature on translation and translation errors, the analysis of comparable texts for the purpose of observing (...) diachronic changes in terminology. The diachronic change in terminology most frequently is the result of the amendments of legislation or repealing one act and replacing it with a new one. The terminological changes are especially frequent when the change in the political system occurs and the need appears to adjust the legal system to the new political ideology and principles. For that reason, the authors have analysed in detail three Polish acts on copyright enacted under three different political regimes that is to say (i) after the First World War when Poland regained independence after 123 years of occupation (Act of 29 March 1926 on Copyrights [Ustawa z dnia 29 marca 1926 r. o prawie autorskiem]), (ii) under the communist rule in Poland that lasted from 1945 until 1989 (Act of 10 July 1952 on Copyrights [Ustawa z dnia 10 lipca 1952 r. o prawie autorskim]), and finally (iii) after the collapse of communism in Poland and the period of transition into the democratic and free market society (Act on Copyrights and Related Rights of 4 February 1994 [Ustawa o prawie autorskim i prawach pokrewnych z dnia 4 lutego 1994 roku]). Apart from the main Polish corpus of above-mentioned acts, the authors have also provided examples from some other languages to confirm that the diachronic changes take place everywhere and miscommunication problems resulting from using an obsolete term in translation may occur in any pair of languages. In the last part of the paper the problem of the scale of miscommunication resulting from the usage of obsolete terminology in the target text is discussed. (shrink)

This book provides an interdisciplinary examination of international law by addressing four critical questions: How are international legal rules distinctive? How does an investigator determine the existence of a rule of international law? Does international law really matter in international politics? and What effect could the changing nature of international relations have on international law? Using Constructivist theory, Arend argues that international law can alter the identity of states, and, consequently, have a profound impact on state behavior.

The Stabilization and Association Agreement with the Republic of Kosovo is a new chapter in the new institutional and social functioning because it has direct impact on the citizens’ life in our country. The effects of the agreement are not only in trading but those are multiple effects, since they do touch the political stability, the rule of law, democratic governance, economic development, trade exchange, regional economic cooperation, etc. and therefore the relevance of this agreement should not be seen from (...) a single viewpoint, but rather from a wider perspective and we should dedicate more attention to the direct legal and trading issues. This agreement in the short term will create perspective and hope, in the middle term, it will create political stability, whereas in the long term, it will bring economic development, and genuinely trading exchange. (shrink)

The article analyzes the changes of legal regulation on natural gas market in the context of the third European Union (EU) energy package. The paper consists of the introduction, two parts and conclusions. The first part analyses the main provisions on the natural gas market of the Third EU energy package. The second part of the paper focuses on the effect of the Third EU energy package on legal regulation of natural gas market in Lithuania. For this purpose, (...) the author analyzes the relevant provisions of the future legal regulation that are laid out in the Conception on draft amendment of the Lithuanian law on natural gas (the Conception) that was adopted by the Resolution of 19 May 2010 No. 585 of the Government of the Republic of Lithuania (the Government). The author analyses the chosen model of implementation of the Directive 2009/73/EC of the European Parliament and of the Council concerning common rules for the internal market in natural gas of 13 July 2009 and repealing Directive 2003/55/EC (Directive 2009/73/EC), and the possible negative and positive consequences of the implementation of the model chosen by the drafters of the Conception. The paper is ended with motivated conclusions. (shrink)

Introduction -- Practical reasons and judicial use of force -- Deviating from legal standards -- The legal duties of judges -- The normative classification of legal results -- Reasons to deviate -- Adherence rules -- Obeying adherence rules -- The judicial oath -- Legal duty and political obligation -- Systemic effects -- Agent-relative principles -- Optimal adherence rules -- Guidance rules -- Treating like cases alike -- Implementation -- Theoretical implications -- Conclusion.

In this broad consideration of American criminal justice today, Allen suggests that the way to a more effective penal policy can be found in a closer adherence to the law rather than in the current tendency to bypass certain laws in the name of the "war on crime".

Motivated by Hoff and Stiglitz’s :753–763, 2004) theory, we examine empirically how the creation of “rules of the game” affect the behavior of economic agents in a transition economy. Using a sample of Chinese state-owned enterprises in which controlling ownership was transferred to private acquirers between 1994 and 2006, we find that the post-privatization performance of firms depends on institutional factors. Before 2003, we observe severe post-privatization tunneling behaviors by acquirers and worse PPP. However, from 2003, when the State (...) issued regulations against tunneling and strengthened enforcement, the incidence of tunneling behaviors declined, and PPP improved. We find that better implementation of ownership transfer and longer prior experience of private acquirers are key factors that contribute to the improvement. (shrink)

The first segment starts with a definition of two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give a historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with the popular rule to the current notion, where the rule of law has become fused (...) with democracy and human rights. The first segment also focuses on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality, and effectiveness. The second segment of the paper analyses the phenomenon of juridification of the rule of law in international treaties and domestic constitutions. It pays particular attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. It analyses the reason why this principle is an essential feature of the constitutionalism despite the inner plurality of legal systems. The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic, covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in Judaism. The segment also covers the secular transplantation of the messianic thought. The last segment is a conclusion returning to the themes identified in the paper and summarises how the messianic thought is applied in the realm of the rule of law. (shrink)

This chapter considers the effect of European Union (EU) law in the national courts of the member states and its status vis‐a‐vis overlapping rules of national law. The basic doctrines crafted by the Court of Justice of the European Union (CJEU) marked a significant departure from the standard model of international law and made a major contribution to the early development of the common market. The CJEU added, in many national legal systems the essentials of the legal (...) rules governing State liability have been developed by the courts. The principle of state liability has in practice been applied by the CJEU with restraint. The national courts now routinely apply the doctrines of direct effect and what de Witte calls ordinary primacy. However, the idea that Union law takes precedence over national rules having constitutional status has proved problematic with top national courts, particularly in so‐called dualist member states. (shrink)

Institutional economics and discourse theory stand unconnected next to each other, in spite of the fact that they both ask for the legitimacy of institutions (normative) and the functioning and effectiveness of institutions (positive). Both use as theoretical constructions rational individuals and the concept of consensus for legitimacy. Whereas discourse theory emphasizes the conditions of a legitimate consensus and could thus enable institutional economics to escape the infinite regress of judging a consensus legitimate, institutional economics has a tested social (...) science paradigm (rational choice) of explaining and predicting the functioning of institutions. The article outlines a theoretical synthesis of the two theories by finding points in common and possibilities of fruitful combinations concerning the problem of legitimacy, institutional design and effectiveness of legal norms. Key Words: consensus • discourse theory • effectiveness of legal rules • institutional design • legitimacy • new institutional economics. (shrink)

Recent approaches to studying argumentation in institutions have pointed out the role of institutional rules in constraining argumentation that takes place in institutional contexts. However, few studies explain how these rules concretely affect actual argumentation. In particular, little work has been done as to the consequences of interactional asymmetry which often exists between participants in institutional contexts. While previous studies have suggested that this asymmetry exists as an aberration in the deliberative process, this paper argues that asymmetry is (...) built into day-to-day institutional practices as a means of achieving institutional agendas. This article draws upon findings from workplace and discourse studies to explicate particular dimensions of asymmetry that commonly occur within institutional settings, and establishes a methodological framework to account for how this asymmetry can be operationalized for arguments that favor institutional interests regardless of the underlying strength of the arguments being made. Drawing on a controversial case of institutional argumentation during a hearing of the US House Committee on Un-American Activities in the mid-1950s, this article demonstrates how in using these advantages, HUAC is able to overcome legitimate witness counterarguments to its claims and achieve its institutional goals for the hearing. Though the testimony is admittedly 60-years old, HUAC is a useful case study: the asymmetry in the exchange is clear and we have a historical record to verify the factual accuracy of the claims being made. Additionally, we can see how the subsequent legal reforms that reduced conditions of asymmetry for witnesses were responsible for HUAC’s eventual demise as an institutional force. Though this paper analyzes one particular interaction, these findings are applicable to analysis of argumentation in many institutional settings. (shrink)

The underlying theme of this article is how a successor state should deal with its past. It considers whether a state that is committed to the rule of law may depart from it in order to deal with problems left to it by its predecessor regime. Specifically, may it use retroactive legislation to punish informers who collaborated with a predecessor police state? Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded (...) as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. Various problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. In the course of the discussion, a response is made to some contemporary critiques of the rule of law. Although it would be difficult to formulate a retroactive law for punishing informers, it is argued that such a law may be the best way for a successor state to express a moral judgment on its past. Diesem Artikel liegt die Frage zugrunde, in welcher Weise ein Nachfolge-Staat mit seiner Vergangenheit umgehen sollte. Es wird untersucht, ob ein Staat, der sich der Idee des Rechtsstaats verpflichtet fühlt, von dieser Idee abrücken darf, um mit den Problemen umzugehen, die ihm von seinem Vorgänger-Staat hinterlassen worden sind. Insbesondere wird gefragt, ob ein solcher Staat zu dem Mittel rückwirkender Gesetzgebung greifen darf, um Denunzianten zu bestrafen, die mit einem vorangehenden Polizeistaat kollaboriert haben. Lon Fullers Formulierung der Prinzipien eines Rechtsstaats im Sinne einer internen Moralität des Rechts wird ebenso erläutert wie sein Begriff von rechtlicher Pathologie als Symptom für ein Abgehen von den Anforderungen der genannten Prinzipien. Verschiedene Schwierigkeiten, die mit der Verwirklichung des Rechtsstaats entstehen, werden näher untersucht, so etwa die Auswirkungen des Zeitablaufs hinsichtlich vernünftiger Erwartungen . Wenngleich rechtliche Pathologie immer eine Frage des Grades ist, kann doch gezeigt werden, daß Polizeistaaten ernstlich an ihr leiden. Unter den diskutierten Beispielen sind Nazi-Deutschland und das kommunistische Ostdeutschland, obwohl zugegeben werden muß, daß es zwischen diesen moralische Unterschiede gibt. Im Verlauf der Untersuchung wird zudem auf einige gegenwärtige kritische Stellungnahmen zum Rechtsstaat erwidert. Obwohl es schwierig wäre, ein rückwirkendes Gesetz zur Bestrafung von Denunzianten zu formulieren, wird doch die These vertreten, daß ein derartiges Gesetz der beste Weg für einen Nachfolge-Staat sein könnte, ein moralisches Urteil über seine Vergangenheit zum Ausdruck zu bringen. (shrink)

In society, people need some properties themselves (the same) or for their own benefits. According to Islamic law, while people acquire the same properties they need through a bay' (sale) contract, they gain access to the benefits of the properties as a means of contracts such as idjâra (rent) or âriyya (lending). Muslims must conclude all kinds of contracts in accordance with the principles and conditions determined within the framework of the Quran and Sunnah. Otherwise, the contracts will be invalid (...) or void. In terms of Islamic law, in a sales contract, the location which subjects to the contract must be existing, and possible to deliver. Since the sale of something that does not exist is prohibited, such a sales contract is void. However, some types of contracts, including the idjâra contract, are exempt from this rule based on some special evidence. Because the idjâra contract, which has been implemented since the time of legislation, is a mandatory need in human life, and also occupies an important place. For this reason, according to some jurists, the idjâra contract was not considered within the scope of the sale of the non-existent through istihsân, contrary to the general rule, and was accepted as legitimate on the grounds of istihsân. The fact that the İdjâra contract is established in a way that is contrary to analogy does not make it possible to compare other contracts with this contract. Since the contract of idjâra is one of the most frequently referred contracts after the contract of sale, it has been discussed in all its aspects by Islamic jurists and examined under separate headings. In this context, the impact of natural disasters on the idjâra contract has not been disregarded. In principle, a rent contract duly established with its provisions and conditions, as well as a sales contract, is binding on both parties. However, in unforeseen circumstances, especially during unexpected disasters, legal problems such as continuation of the rent contract, benefiting from the benefit of the rented property and refund of the paid fee arise. In our study, first of all, after briefly presenting what natural disasters mean in Islamic law literature, the nature of the idjâra contract will be focused on, and then only the consequences of natural disasters on the rent contract will be detailed. As a result, in such disasters cause partial or total loss to the rented property, the possibility of continuation of the contract and the responsibilities of the parties will be revealed. (shrink)

Legality, interdisciplinarity and the study of practice -- Re-thinkinking interdisciplinarity by re-reading hume -- Tainted love : the struggle over legality in international relations and international law -- The power of legality, legitimacy and the (im)possibility of interdisciplinary research -- Moving while standing still : law, politics and hard cases -- International law, Kelsen and the aberrant revolution : excavating the politics and practices of revolutionary legality in Rhodesia and beyond -- Juris dicere : custom as a matrix, custom as (...) a norm, and the role of judges and (their) ideology in custom making -- Multiple legalities and international criminal tribunals : juridical versus political legality -- Palestine's quest for statehood and the practice of the United Nations -- Regulatory legality : extraterritorial rule across domestic and international arenas -- Legality and lawfare in regime implementation -- Whose legality? Rule of law missions and the case of Kosovo -- Perspectives on the perils, promise, politics - and practice of interdisciplinarity. (shrink)

As a fiqh (Islamic jurisprudence) term, the concept of “ignorance” ex-presses uncertainties in legal transactions and, in Islamic law, is accepted as a situation that negatively impacts the legitimacy of contracts. If the sale is deferred, clarification of the delivery time of the price to be paid for the goods sold, the number of installments, etc. during the contract is considered essential for the validity of the transactions in order not to damage the principle of mutual consent in purchase (...) and sale transactions and to avoid conflicts between the parties. However, not every uncertainty is considered an obstacle to the validity of the contract, and minor uncertainties that do not lead to disputes are tolerated. The fiqh sources of four Islamic sects contain many examples of these uncertainties. This study firstly examines the effect of ignorance on the validity of purchasing contracts in Islamic law using the issues in classical fiqh sources and then analyses the housing sales contract of TOKI’s (housing development administration of Turkey) “my first house social housing project” in this context from a fiqh perspective. In addition, the study addresses the related housing sales contract in terms of the juristic preference method by considering the aspect of meeting an important need of society and realizing the purpose of this project. Then, while evaluating the issue from a juris-prudential point of view, the study discusses that the absolute and strict interpretation of the rule of “ignorance renders the contract void,” which is adopted by ignoring the public interest, does not produce favorable results. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which inspires a philosophical re-examination of the moral status of the rule of law. The chapter analyses survey data from the US about law-related attitudes and legal compliance. Consistently with prior studies, it finds that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors (...) of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined in the chapter); and (ii) their moral assessment of the content of specific legal requirements (referred to in the chapter as ‘perceived moral content of laws’). The chapter also observes an interactive relationship between these two factors. The authors then identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. They argue that Lon Fuller’s precepts of legality possess an expressive moral quality, but that the extent to which their expressive effect materialises is sensitive to the moral quality of the law’s content. (shrink)

Several recent studies and initiatives have emphasized the importance of a strong ethical organizational DNA (ODNA) to create and promote an effective corporate governance culture of trust, integrity and intellectual honesty. This paper highlights the drawbacks of an excessively heavy reliance on rules-based approaches that increase the cost of doing business, overshadow essential elements of good corporate governance, create a culture of dependency, and can result in legal absolutism. The paper makes the case that the way forward for (...) effective corporate governance is to strike an optimal balance between rules-based and principles-based approaches. The recent corporate scandals have demonstrated that the ethical ODNA is critical to the driving force and basis of legal and regulatory requirements. Effective governance means adhering to ethical principles, not merely complying with rules, and is a crucial guardian of a firm’s reputation and integrity. It is through an effective corporate governance program (that is, one that optimally captures and integrates the appropriate aspects of rules-based and principles-based approaches, and identifies and assesses the related risks) that an organization can reconfigure its ODNA for improved performance. Focusing on the ethical ODNA as the basis of new governance measures provides an opportunity to develop a competitive advantage as it represents a potential source of differentiation, strengthens the relationship with all stakeholders of the organization by building a culture of trust and integrity, and re-instills investor confidence. This paper employs dialectical reasoning that links the ODNA through principles-driven rules in developing a risks-based approach. A comparison from a risk assessment perspective between rules-based and principles-based approaches is presented. Although there have been few applications employing dialectical reasoning in business research, this methodology can be extremely useful in isolating ethical issues and integrating them into the business process. The risks-based approach captures the benefits of both rules-based and principles-based approaches, and incorporates trust-based principles such␣as solidarity, subsidiarity and covenantal relationships. (shrink)

The purpose of the present paper is to unveil whether the power distance/textual complexity duality attributed ordinarily to legal language applies to two different documents which are widely deployed, interpreted and applied in the global scope of commercial trade and communications, namely Lloyd’s Institute Cargo Clauses and the London International Court of Arbitration Rules. In choosing two texts which are the direct product of the law-making machinery of the Common law system, but which are used internationally, we ultimately (...) undertake to research whether opacity is really inherent to legal texts in English with an international scope of implementation. To scrutinise, illustrate and argue on the degree of difficulty and power distance in such legal instruments, the perspective of genre has been chosen as the most effective of instruments provided by current Applied Linguistics. Genre analysis permits to identify the genre or genres of a specialised professional community connected to the communicative group it comes from, the audience that receives it, the historical and cultural background and the extra-textual reality it aims to represent. The goal of our study, carried out through different levels: formal, discursive and, mainly, pragmatic, is to discern whether there exists any possible equation between power and textual complexity, and the consequences this entails for the understanding of the nature of these major international texts. (shrink)

The purpose of the present discussion is to present, reflect upon, and evaluate the effective legal regulations concerning the obligation to terminate a medical experiment. The considerations made herein aim at providing an answer to the question whether the aforesaid legal regulations are clear and sufficient. The said analysis is based on the following source: The Act of 5 December 1996 concerning the Professions of General Practitioner and Dental Practitioner. The regulations concerning the obligation to discontinue a medical (...) experiment, both by the will of the participant and on the physician’s initiative, are of great importance owing to the fact that they guarantee protection of the patients taking part in the experimental study. The provisions implicitly oblige the physician to monitor the patients’ state of health and conduct constant assessment whether or not further carrying on the experiment is expedient and admissible. The legal regulations effective in Poland are explicit and sufficient. Their wording does not raise any considerable reservations. As it appears, the legislature managed to work out appropriate rules so as to minimize the danger zone for the participants of clinical tests and at the same time implement a guarantee that participants’ rights shall be respected. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

This book's aims are to determine the importance of legal philosophy in legal education and in addition to develop alternative methods for teaching law in general and the philosophy of law in particular. In this context, the individual essays in this volume discuss the alternatives and tendencies in the quest for an adequate model of teaching and learning jurisprudence. Common to all of them is a commitment to the necessary integration of theoretical and practical knowledge, of traditional case (...) and lecture methods with non-traditional models such as cinema, drama, and literature, and of the dominant legal perspective with alternative approaches utilizing information technologies such as computers and the internet. Effective teaching and learning must favor critical and strategic thinking, dialectical and dialogical inquiry or research, problem-solving, role-playing, and skill-developing over mere rote memorization of existing rules and standard answers. (shrink)

Legal reasoning settles morally pressing matters through a technique that largely bypasses open-ended moral argument. That technique makes central what certain persons validly decided in the past, for example in creating statutes, judicial resolutions, contracts, or wills. Identifying valid decisions is a lawyerly skill and, echoing legal practice, legal philosophy has paid considerable attention to validity criteria. But it has neglected to explore validity's point: whether, and if so exactly how, the special technique of validity contributes to (...) a legal system's ability to realise justice and human rights. Even the most sensible defences of the moral need for positive law have insufficiently probed this key step in the argument. This book lays bare the workings of legal validity, and shows why, and within what general limits, this technique equips legal systems with privileged tools to foster human well-being. In so doing, the book explains how power-conferring norms setting out validity criteria endow agents' intentions with 'performative' effect ('I hereby.') and can secure the requirement of justice that there be widespread convergence on specific patterns of conduct shaped through a cooperative effort. Legal meaning is accordingly systemic, resulting from the valid acts of multiple agents whose decisions can, by virtue of exercising legal power, also exercise moral power (authority). In short, the book articulates why it is morally necessary that validity does not primarily turn on moral considerations. (shrink)

al-Qurṭubī (d. 671/1273) was a scholar of tafsīr, ḥadīth and fiqh. He experienced both Western and Eastern civilizations in the geography of Andalusia and Egypt, respectively. In his famous Tafsīr called al-Jâmi li-Aḥkâm al-Qur’ān, al-Qurṭubī comparatively explained and interpreted all legal verses. Also, in addition to exploring the spesific legal rulings denoted in the Qur’ān and the Sunnah, al-Qurṭubī has largely interpreted the legal norms regarding the issues of jurisprudence. By doing this, al-Qurṭubī contributed to the formation (...) and development of a civil codification activity under a kazuistic format. The casuistic structure of the legal exegesis of the Qur’ān is anlaysed in terms of the form and content in the sample of al-Jâmi. Therefore, neither the similarity or similarity of the schools of the legal exegesis of Qur’ān and of the legal schools nor the disciplines of positive law, but their kazuistic structures, which systems they built and which interpretation methods and techniques they operated on this basis, were evaluated in terms of their original structure. In this direction, the article emphasizes that the casuistic structure of the legal exegesis of Qur’ān is established on and by the Prophet’s sayings and practices. Although, it has been observed that it is a unique tradition, both as form and content, and that the interpretation means are identified with its own unique structure, it has been concluded that the casuistic method is not one of the fundamental elements of both this tradition and Islamic legal thought. This means that the casuistic method is always a tool that can be changed and transformed according to the conditions of time and space.Summary: As it is stated in al-Isrāʾ 17/106: “And (it is) a Qur’ān which we have separated (by intervals) that you might recite it to the people over a prolonged period. And we have sent it down progressive.”, the Qur’ān is revelaed in about twenty-three years by taking into consideration the sociocultural positions of its interlocutors. The Prophet Muḥammad explained the Qur’ān by the virtue of the ayah: “(We sent them) with clear proofs and written ordinances. And We revealed to you the message (i.e. that you may make clear to the people what was sent down to them and that they might give thought.” (an-Naḥl 16/44). Of course, there is no subject integrity in this Qurānic chronology-which also reflects life. As a matter of fact, the issues related to individual and society have been independently analyzed by a casuistic/case-based method and ruled in accordance with the intention of Allāh. It can be seen that the ayahs “They ask you about wine and gambling. Say, ‘In them is great sin and (yet, some) benefit for people. But their sin is greater than their benefit.’ And they ask you what they should spend. Say, ‘The excess (beyond needs).’ Thus Allāh makes clear to you the verses (of revelation) that you might give thought.” (al-Baqara 2/219) and other ayahs such as (al-Baqara 2/186; al-Nisāʾ 4/176; al-Anfāl 8/1) reflect the casuistic method in terms of form and content. This can also be exemplified by the Sunna. For example, when the question “Is it permissible to perform ablutions with sea water?” was posed to Messenger of Allāh. He said that “It’s water is clean and his dead (fish) are lawful “(Abū Dāwūd, “Ṭaḥāra”, 41). By this answer, the Prophet Muḥammad indeed ruled and established a general rule.It can be said that this early example table formed the basis of the legal exegesis of the Qur’ān in terms of origin, source and application, and that its shape and content are often immanent in the examples it contains. In this article, based on the prophetic period, the legal exegesis of the Qur’ān and casuistic structure has been studied with an analytical and critical approach. Again, because the casuistic method is one of the universal concepts of east-west science and cultural life, an interdisciplinary approach was exhibited in this study. The roots of the casuistic method date back to 5000 BC and the legal systems of the society and states of antiquity are examined from this method. This method is chosen and used in the legal exegesis of the Qur’ān. However, this study does not analyse the sameness or the similarity of the legal exegesis of the Qur’ān and the legal schools nor the positive law disciplines, but the casuistic structures used by these, the systems they have built on this basis and the interpretation methods and techniques they have been used and analyzed in terms of their originality.In effect, the article embodies the Qur’ānic exegesis called al-Jâmi li-Aḥkâm al-Qur’ān by al-Qurṭubī (d. 671/1273), a scholar of tafsīr, ḥadīth and fiqh. In addition to the works of the aḥkām al-Qur’āns, which deal with the interpretation of the ayahs related to the subjects of ʿibādāt, muʿāmalāt ve ʿuḳūbāt, many other works have been used in parallel with the development of the legal exegesis of the Qur’ān. al-Qurṭubī, who comparingly explained the legal verses in his tafsīr, investigated the aspects of the Qur’ān and Sunna that indicate the aḥkām, generally interpreted the existing legal norms within the framework of evidence and introduced his own opinions and etasblished his ijtihād. Thus, he benefited from the tafsīr accumulation and contributed to the formation and development of a civil legalization activity with casuistic format. As a matter of fact, the casuistic/case-based method has been used as a codification/tadwīn technique by Western and Eastern legal disciplines and systems. The casuistic method covers both concrete event and abstract ruling methods. In the casuistic method, which is fact-based event, the laws are organized according to all possible events that can be experienced. On the other hand, the abstract method, which is defined as the abstract ruling method, aims to organize the laws in a general and abstract framework. In the article, it is stated that the legal exegesis of the Qur’ān contains both concrete and abstract dimensions in its own way. It has been emphasized that the legal exegesis of the Qur’ān is based on divine revelation (waḥy) and that it is separated from human law as its origin and source, and that this feature is its most faithful characteristic. On this basis, the legal exegesis of the Qur’ān is a separate scholarly tradition and has its own definition, subject and purpose. Its original structure and function have been noted. As a matter of fact, the subject and purpose of the legal exegesis of the Qur’ān always require the tafsīr and taʾwīl of the legal verses having regard to the Qur’ān and Sunna. It is also necessary for the purpose of investigating the ways in which nuṣūṣ (an explicit statement upon which a ruling is based) can refer to the provisions and to resolve the issues related to individuals and society. As a matter of fact, the legal verses function as a guide for humanity until the day of judgment as the inspiration for religious-legal matters; they contain the content and provisions that offer happiness in the two worlds. (shrink)

Technological developments increasingly enable monitoring and steering the behavior of individuals. Enforcement of the law by means of technology can be much more effective and pervasive than enforcement by humans, such as law enforcement officers. However, it can also bypass legislators and courts and minimize any room for civil disobedience. This significantly reduces the options to challenge legal rules. This, in turn, can impede the development of legal systems. In this paper, an analogy is made with evolutionary (...) biology to illustrate that the possibility to deviate from legal rules and existing norms is sometimes necessary for the further development of legal systems. Some room to break the law, for instance, through civil disobedience or imperfect enforcement of the law, will ensure sufficient variation. This allows for properly evolving legal systems that can continue to provide fair solutions, even when society and concepts of fairness further develop. (shrink)

This article reflects on the effects the media's constant projection of female images of sexually suggestive aesthetic perfection produces on woman's perception of herself and, above all, on her tendency to seek confirmation of her own worth essentially through other people's approving glances. After exploring the analogy between this mechanism and Bentham's Panopticon system, the article goes on to reflect on the profound psychological implications of the awareness of being scrutinized by others, leading to disempowerment and interiorization of the rule. (...) Finally, the article analyses the possible impact of D. Rhode's legal proposals in this area, so as to consider what, if anything, law can do to remedy this kind of oppressive system. (shrink)

This paper traces back the sources of our present legal system and of market economy to Medieval Europe which itself benefited from Hellenistic and Roman legal culture and commercial practices. Roman provinces placed Rome in the wider Greek cultural and commercial world. If Aristotle was already transcending the narrow polis-based conceptions of his predecessors, after him Hellenistic Civilization saw the emergence of a new school of philosophy: Stoicism. The legal thought in the Latin West will hence be (...) characterized by Cicero’s writings and its Stoic sources. The Roman legal system was similar to the later northern European customary law and the English common law; Roman law was evolutionary and customary. The rise of Western individualism, whether it dates back to St. Augustine in the fifth century, or to the two Papal Revolutions of Gregory I (establishing the nuclear family as the core of individualism) and of Gregory VII, also played a crucial role in shaping the western legal tradition. The paper describes the main forces that led to this second (Gregorian) revolution. Monasticism is one of them. Benedictine monasticism plaid a leading role in the Peace of God Movement. Hence collective oath-taking by groups in the name of peace was essential in the founding of cities and in the formation of guilds. Europe’s economic resurgence in the Eleventh Century was on the basis of the creation of the rule of law by the Peace of God movement. This movement also allowed for Europe’s agricultural economy to progress. Indeed, the European Middle Ages is one of the major periods of technological innovation in the history of the world. The Gregorian Revolution itself was supported and financed by the Commercial Revolution: Italian bankers sustained Papal reformers against the Emperors. The independence of the Italian cities and provinces reveals one of the most important consequences of the Gregorian Revolution: the polycentricism of Western Europe. This Revolution also witnessed the first large number of political pamphlets in European history; the Gregorian clergy emphasizing a compact theory of government. Soon after, the order of Cistercians was founded (1098) and underwent spectacular growth during the next two centuries. The Cistercians accepted no rents or labor services from feudal donors but would take only full possession of land to do with it as they wished.These monasteries were the most economically effective units that had ever existed in Europe, and perhaps in the world, before that time. Finally, the Magna Carta (1215) that will be so influential on modern political thought can be seen as a direct consequence of the Gregorian Revolution. (shrink)

Classification is one of the distinctive features of Paralympic sport. Despite the existence of classification rules and a well-defined classification process, some Paralympic athletes intentionally misrepresent their abilities to classifiers in order to be allocated to a lower performing competition class, in which they secure an unfair advantage over other athletes. Such deception undermines the integrity of the competition by exploiting a vulnerability in the classification process. Such manipulation is hard to mitigate and harder still to prove that an (...) athlete had; intentionally misrepresented their abilities or; failed for innocent reasons to make maximum efforts during the classification or; had acted under coercive pressure from others in their entourage or environment. These challenges are compounded in the case of Paralympic athletes that have an intellectual impairment or who are accompanied by a parent/guardian who acts as a proxy, rendering evaluations as to responsibility even more complex. This article presents a conceptual analyses of intentional misrepresentation of abilities in Paralympic sport, and the differentiation of responsibility for offence thereupon, as stipulated in the draft of the International Standard for Intentional Misrepresentation, accompanying the new 2025 Athlete Classification Code (IPC, Citation2024). Drawing on philosophical and legal analysis we (i) set out existing shortcomings associated with Paralympic classification; (ii) articulate the range of potential intentional misrepresentational acts with respect to classification manipulation; and (iii) articulate the range of negative effects on the integrity of Paralympic sport. (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s (...) talk. Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the (...) circumstances the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement. (shrink)

Over the last decade, philosophers of science have extensively criticized the epistemic superiority of randomized controlled trials for testing safety and effectiveness of new drugs, defending instead various forms of evidential pluralism. We argue that scientific methods in regulatory decision-making cannot be assessed in epistemic terms only: there are costs involved. Drawing on the legal distinction between rules and standards, we show that drug regulation based on evidential pluralism has much higher costs than our current RCT-based system. (...) We analyze these costs and advocate for evaluating any scheme for drug regulatory tests in terms of concrete empirical benchmarks, like the error rates of regulatory decisions. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental (...) freedoms guaranteed by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

Physicians' duties to their patients traditionally have been construed narrowly in time and scope to focus on the specific episode of care or clinical encounter. Physicians generally have had no ethical or legal duty to notify patients about new medical information discovered after a visit, notwithstanding the health care benefits to patients that might flow from receiving the information. The rule was based on the relatively high burdens that notification would impose on physicians compared with the likelihood of benefits (...) to patients. This established view, however, no longer may be appropriate in light of new physician-patient relationships and the reduced burden of patient notification using new types of health information technology. This article explores the duty to inform patients and former patients about relevant, medical developments subsequent to their episode of care. It concludes by recommending the recognition in ethics and law of a limited, ongoing duty to notify patients of significant information relevant to their health. (shrink)

The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming (...) in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society. (shrink)

Genomic biobanking research is undergoing exponential growth in Africa raising a host of legal, ethical and social issues. Given the scientific complexity associated with genomics, there is a growing recognition globally of the importance of science translation and community engagement for this type of research, as it creates the potential to build relationships, increase trust, improve consent processes and empower local communities. Despite this level of recognition, there is a lack of empirical evidence of the practise and processes for (...) effective CE in genomic biobanking in Africa. To begin to address this vacuum, 17 in-depth face to face interviews were conducted with South African experts in genomic biobanking research and CE to provide insight into the process, benefits and challenges of CE in South Africa. Emerging themes were analysed using a contextualised thematic approach. Several themes emerged concerning the conduct of CE in genomic biobanking research in Africa. Although the literature tends to focus on the local community in CE, respondents in this study described three different layers of stakeholder engagement: community level, peer level and high level. Community level engagement includes potential participants, community advisory boards and field workers; peer level engagement includes researchers, biobankers and scientists, while high level engagement includes government officials, funders and policy makers. Although education of each stakeholder layer is important, education of the community layer can be most challenging, due to the complexity of the research and educational levels of stakeholders in this layer. CE is time-consuming and often requires an interdisciplinary research team approach. However careful planning of the engagement strategy, including an understanding of the differing layers of stakeholder engagement, and the specific educational needs at each layer, can help in the development of a relationship based on trust between the research team and various stakeholder groups. Since the community layer often comprises vulnerable populations in low and middle income countries, co-development of innovative educational tools on genomic biobanking is essential. CE is clearly a component of a broader process best described as stakeholder engagement. (shrink)

Human rights issues are present today in almost every area of society and, accordingly, occupy a special place in it. Due to the fact that modern Ukraine is in a transitional state of creating legal, state and public institutions, the process of formation of civil society requires the identification of the nature of legal relations in a transitional period. After all, relations in civil society should be formed on the basis of awareness of the inalienability and non-repudiation of (...) natural human rights. They should be based on the positive legislation of the state. They are the key to the effectiveness of the entire system of social relations. Ensuring human rights is the criterion by which the achieved level of democracy in the state is assessed. The beginning of this process can be called consolidation in the Basic Law of the provision that a person, his life and health, honor and dignity, integrity and security are recognized as the highest social value, and determining the priority of universal values. At the same time, the needs of the present, in fact, directs the development of modern law, is the development of certain general legal standards that allow us to move on to a new qualitative coexistence of nations in the modern world on substantial humanistic principles. In addition to examining the established mechanisms and specifics of protecting everyday human rights, the article examined the new human rights that exist in post-modern society, which today are called the rights of the “fourth generation”. (shrink)

Medical councils increasingly require graduates to understand law and to practise medicine mindful of the legal rules. In the UK a revised curriculum for medical law and ethics has been published. However, coverage of law in medical education remains variable and doubts exist about how far students acquire legal knowledge and skills in its implementation. This survey of students in two UK medical schools measured their law learning and their confidence in using this knowledge. Concept maps and (...) a self-audit questionnaire were used to capture students' understanding and perceptions of this knowledge domain and self-assessments of their legal knowledge and skills. A large sample was achieved across first, second and final year students. Students agree that a sound understanding of law is essential to being a good doctor. Their perceptions of law are generally positive but the interface between the legal rules and codes of medical ethics creates difficulty. In some areas students offer relatively confident self-assessments of their legal knowledge and skills for practising law. However, levels of confidence in other areas of their law learning raise doubts about the degree to which they can advocate for and protect their patients. Conclusions are drawn about the effectiveness of students' law learning and recommendations made for further research. (shrink)

Artificial intelligence (AI) has sparked interest in various areas, including marketing. However, this exhilaration is being tempered by growing concerns about the moral and legal implications of using AI in marketing. Although previous research has revealed various ethical and legal issues, such as algorithmic discrimination and data privacy, there are no definitive answers. This paper aims to fill this gap by investigating AI’s ethical and legal concerns in marketing and suggesting feasible solutions.,The paper synthesises information from academic (...) articles, industry reports, case studies and legal documents through a thematic literature review. A qualitative analysis approach categorises and interprets ethical and legal challenges and proposes potential solutions.,The findings of this paper raise concerns about ethical and legal challenges related to AI in the marketing area. Ethical concerns related to discrimination, bias, manipulation, job displacement, absence of social interaction, cybersecurity, unintended consequences, environmental impact, privacy and legal issues such as consumer security, responsibility, liability, brand protection, competition law, agreements, data protection, consumer protection and intellectual property rights are discussed in the paper, and their potential solutions are discussed.,Notwithstanding the interesting insights gathered from this investigation of the ethical and legal consequences of AI in marketing, it is important to recognise the limits of this research. Initially, the focus of this study is confined to a review of the most important ethical and legal issues pertaining to AI in marketing. Additional possible repercussions, such as those associated with intellectual property, contracts and licencing, should be investigated more deeply in future studies. Despite the fact that this study gives various answers and best practices for tackling the stated ethical and legal concerns, the viability and efficacy of these solutions may differ depending on the context and industry. Thus, more research and case studies are required to evaluate the applicability and efficacy of these solutions in other circumstances. This research is mostly based on a literature review and may not represent the experiences or opinions of all stakeholders engaged in AI-powered marketing. Further study might involve interviews or surveys with marketing professionals, customers and other key stakeholders to offer a full knowledge of the practical difficulties and solutions. Because of the rapid speed of technical progress, AI’s ethical and regulatory ramifications in marketing are continually increasing. Consequently, this work should be a springboard for more research and continuing conversations on this subject.,This study’s findings have several practical implications for marketing professionals. Emphasising openness and explainability: Marketing professionals should prioritise transparency in their use of AI, ensuring that customers are fully informed about data collection and utilisation for targeted advertising. By promoting openness and explainability, marketers can foster customer trust and avoid the negative consequences of a lack of transparency. Establishing ethical guidelines: Marketing professionals need to develop ethical rules for the creation and implementation of AI-powered marketing strategies. Adhering to ethical principles ensures compliance with legal norms and aligns with the organisation’s values and ideals. Investing in bias detection tools and privacy-enhancing technology: To mitigate risks associated with AI in marketing, marketers should allocate resources to develop and implement bias detection tools and privacy-enhancing technology. These tools can identify and address biases in AI algorithms, safeguard consumer privacy and extract valuable insights from consumer data.,This study’s social implications emphasise the need for a comprehensive approach to address the ethical and legal challenges of AI in marketing. This includes adopting a responsible innovation framework, promoting ethical leadership, using ethical decision-making frameworks and conducting multidisciplinary research. By incorporating these approaches, marketers can navigate the complexities of AI in marketing responsibly, foster an ethical organisational culture, make informed ethical decisions and develop effective solutions. Such practices promote public trust, ensure equitable distribution of benefits and risk, and mitigate potential negative social consequences associated with AI in marketing.,To the best of the authors’ knowledge, this paper is among the first to explore potential solutions comprehensively. This paper provides a nuanced understanding of the challenges by using a multidisciplinary framework and synthesising various sources. It contributes valuable insights for academia and industry. (shrink)

Automated Vehicles (AVs) are designed and programmed to follow traffic rules. However, there is no separate and comprehensive regulatory framework dedicated to AVs. The current Queensland traffic rules were designed for humans. These rules often contain open texture expressions, exceptions, and potential conflicts (conflict arises when exceptions cannot be handled in rules), which makes it hard for AVs to follow. This paper presents an automatic compliance checking framework to assess AVs behaviour against current traffic rules (...) by addressing these issues. Specifically, it proposes a framework to determine which traffic rules and open texture expressions need some additional interpretation. Essentially this enables AVs to have a suitable and executable formalization of the traffic rules. Defeasible Deontic Logic (DDL) is used to formalize traffic rules and reasoning with AV information (behaviour and environment). The representation of rules in DDL helps effectively in handling and resolving exceptions, potential conflicts, and open textures in rules. 40 experiments were conducted on eight realistic traffic scenarios to evaluate the framework. The evaluation was undertaken both quantitatively and qualitatively. The evaluation result shows that the proposed framework is a promising system for checking Automated Vehicle interpretation and compliance with current traffic rules. (shrink)

The article analyzes the impact of modern digital technologies used in the information society on democracy, human rights, and the rule of law in general. Both positive and negative aspects of such impact are considered. The importance of this topic is due to the need for further deepening of scientific knowledge related to the development of the rule of law in the information society and insufficient research from the legal point of view of current theoretical problems of the rule (...) of law in the digital era. The purpose of this article is to study the rule of law as a principle of the modern state of the 21st century and to study the problems in matters of human rights that have arisen with the development of modern digital technologies. The study of this issue is quite relevant, considering the conclusions, made as a result of our work, can be taken into account in further theoretical developments of international and national human rights protection aimed at improving the effectiveness of human rights judicial protection and improving current legislation. (shrink)

This book presents an analysis of global legal history in Modern times, questioning the effect of political revolutions since the 17th century on the legal field. Readers will discover a non-linear approach to legal history as this work investigates the ways in which law is created. These chapters look at factors in legal revolution such as the role of agents, the policy of applying and publicising legal norms, codification and the orientations of legal writing, (...) and there is a focus on the publicization of law. The author uses Herbert Hart's schemes to conceive law as a human artefact or convention, being the union between primary rules of obligations and secondary rules conferring powers. Here we learn about those secondary rules and the legal construction of the Modern state, and we question the extent to which codification and law reporting were likely to revolutionize the legal field. These chapters examine the hypothesis of a legal revolution that could have concerned many countries in modern times. To begin with, the book considers the legal aspect of the construction of Modern States in the 17th and 18th centuries. It goes on to examine the consequences of the codification movement as a legal revolution before looking at the so-called "constitutional" revolution, linked with the extension of judicial review in many countries after World War II. Finally, the book enquires into the construction of an EU legal order and international law. In each of these chapters, the author measures the scope of the change, how the secondary rules are concerned, the role of the professional lawyers and what are the characters of the new configuration of the legal field. This book provokes new debates in legal philosophy about the rule of change and will be of particular interest to researchers in the fields of law, theories of law, legal history, philosophy of law and historians more broadly. (shrink)

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the (...) role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory. (shrink)

There are frequent claims that the regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the desired stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law. This study examines this problem for the first time since these questions (...) were introduced and identified as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht. Addressing different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on, and threshold of, legal regulation, and the relationship between established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves to maintain and preserve the object and aims of existing legal regulation. The final stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. (shrink)

There are very few (published) accounts of editorial misconduct, and those that do exist are almost exclusively focused on medicine-related areas. In the present article we detail a case of editorial misconduct in a rather underexplored domain, the social sciences. This case demonstrates that although legal systems provide different instruments of protection to avoid, compensate for, and punish misconduct on the part of journal editors, the social and economic power unbalance between authors and publishers suggests the importance of alternative (...) solutions before or instead of bringing a lawsuit to court. It puts forward strong arguments in favour of the need for effective regulatory bodies so as to achieve and maintain a culture of research integrity by all involved in the process. (shrink)

The main goal of concentration control and basic legal tests applied worldwide for the evaluation of concentrations, such as “dominance”, “significant impediment of competition” and “substantial lessening of competition” are analysed in this article. Every control, whatever its nature, is implemented in order to reach certain goals. In the first part of this article we analyse the goals of concentration control in different jurisdictions – mostly in the European Union, the USA and Lithuania. Four basic market security standards are (...) excluded: economic efficiency, protection of consumers, protection of competitors and protection of effective market competition. At the end we make a conclusion that the same standard, namely that of consumer protection, is applied in all those jurisdictions and that more attention should be paid for the protection of competitors and competition as a whole. Secondly, “dominance” test, applied in the EU under Regulation 4064/89, is analysed in detail. Moreover, the article discusses the meaning of a “dominant position”. We uphold the clarification of “dominance” provided by the Court of Justice, according to which dominance means the ability “to act to a considerable extent independently of their competitors, their customers and, ultimately, of consumers”. It is argued that “dominance” test is not sufficient for contemporary economics. The main disadvantage of this rule is that it is inapplicable for concentrations that do not create or strengthen dominant position. Furthermore, the new European Union rule of “significant impediment of competition” can be named as a smart European decision that tackled several problems: the practice of the Court of Justice remained applicable for future cases, because no serious changes to the wording of the rule were made. The detection of “dominant position” became only an alternative means to impede competition. In addition to this, the USA, the UK rule of “substantial lessening of competition” is compared to the two rules referred above. The concept of “monopoly” used in the wording of the rule, as well as the practice of the USA courts concerning the evaluation of market concentrations is analysed. We conclude that literally the phrases “significant impediment of competition” and “substantial lessening of competition” are different, but the content of these rules is the same. Different decisions taken in the same or similar cases on both sides of the Atlantic depend not on a certain rule but on the means of its application and some other circumstances (social, political factors, etc.). Finally, it is argued that practice of the evaluation of concentrations in the Republic of Lithuania is extremely poor. According to the present findings of the Competition Council of the Republic of Lithuania, it is hard to say the kind of approach the Council follows or, in other words, what kind of a rule the Council applies. Despite the fact that competition law in Lithuania was updated in conformity with the changes made in the EU competition law, we state that the test of “dominance” is further applied in certain concentration cases. (shrink)

This Article takes an experimental approach to test whether the salience of the law as a system that governs an interaction affects people’s preferences. I find that when the law is made salient in an interaction people’s preferences are altered: they express more future-oriented preferences and donate less money to charity, as compared to when the law is not salient in an otherwise identical interaction. When the law is salient in an interaction people also prefer ‘products’ over experiences, but this (...) gap is only marginally significant. The findings suggest that the framing of an interaction as legal tends to evoke cultural scripts and implicit rules of behavior (“common knowledge”) that incorporate the shared assumptions in society about the law. In response, participants interpret the interaction as more rational and instrumental and express preferences accordingly. (shrink)