The scientific validity of racial categories has been the subject of debate among population geneticists, evolutionary biologists, and physical anthropologists for several decades. After World War II, the rejection of eugenics, which had supported sterilization laws and other destructive programs in the United States, generated a compelling critique of the biological basis of race. The classification of human beings into distinct biological “races” is a relatively recent invention propped up by deeply flawed evidence and historically providing the foundation of racist (...) ideology and inequities of power. Social scientists’ conclusion that race is socially constructed was confirmed by genomic studies of human variation, including the Human Genome Project, showing high levels of genetic similarity within the human species. Some scholars came to believe that the science of human genetic diversity would replace race as the preeminent means of grouping people for scientific purposes. (shrink)

BackgroundClinical trials involving children previously considered unethical are now considered essential because of the inherent physiological differences between children and adults. An integral part of research ethics is the informed consent, which for children is obtained by proxy from a consenting parent or guardian. The informed consent process is governed by international ethical codes that are interpreted in accordance with local laws and procedures raising the importance of contextualizing their implementation.FindingsIn Zimbabwe the parental informed consent document for children participating in (...) clinical research is modeled along western laws of ethics and requires that the parent or legally authorized representative provide consent on behalf of a minor. This article highlights the experiences and lessons learnt by Zimbabwean researchers in obtaining informed consent from guardians of orphaned children participating in a collaborative HIV clinical trial involving the Medical Research Council, United Kingdom and four centers, three of which are in Uganda. Researchers were faced with a situation where caregivers of orphaned children were not permitted to provide informed consent for trial participation. The situation contrasted with general clinical practice where consent for procedures on orphans is obtained from their caregivers who are not legal guardians.ConclusionThe challenges faced in obtaining informed consent for orphans in this clinical trial underscores the need for the Zimbabwe ethics committee to develop an ethical and legal framework for pediatric research that is based on international guidelines while taking into account the cultural context. The Medical Research Council of Zimbabwe has since started the process that is expected to involve critical stakeholders namely the community including children, ethicists, the legal fraternity and researchers. (shrink)

This paper deals with the question of how to price drugs for tropical diseases. The thesis defended in the paper is: (i) there should be no legal constraints on the profits pharmaceutical companies can make on their products for tropical diseases. In essence, (i) expresses the idea that drugs for tropical diseases should be treated as any other product on the free market and that the producers of these drugs should be allowed to sell their products at whatever (...) price the market can bear. The main argument in favour of (i) is first outlined. Five common arguments against (i) are thereafter discussed, and it is argued that all of these fail in their intended purpose. (shrink)

Background: Clinical trials involving children previously considered unethical are now considered a necessity because of the inherent physiological differences between children and adults. An integral part of research ethics is the informed consent, which for children is obtained by proxy from a consenting parent or guardian. The informed consent process is governed by international ethical codes that are interpreted in accordance with local laws and procedures raising the importance of contextualizing their implementation.DiscussionThe Zimbabwean parental informed consent document for children participating (...) in clinical research is modeled along western laws of ethics and requires that the parent or legally authorized representative provide consent on behalf of a minor. This article highlights the experiences and lessons learnt by Zimbabwean researchers in interpreting and obtaining informed consent for orphaned children participating in a collaborative HIV clinical trial involving the Medical Research Council, United Kingdom and four centers, three of which are in Uganda. Researchers were faced with a situation where caregivers of orphaned children were not permitted to provide informed consent for trial participation if the Zimbabwean courts had not legally appointed them. The situation contrasted with general clinical practice where legal papers where not required for providing consent for surgical procedures for example.SummaryExperiences gained from this clinical trial revealed that while there may be internationally established guidelines governing the process of obtaining informed consent for children participating in research, there may be need to be cognizant of the culture within which the research is taking place. This may call for the development of an ethico-legal framework that governs research-involving children in Zimbabwe that would facilitate their participation in clinical research, while ensuring that they are protected from exploitation. The Medical Research Council of Zimbabwe has since started developing that framework in a process that is expected to involve critical stakeholders namely the community including children, ethicists, the legal fraternity and researchers. (shrink)

I argue that the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgment of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty. I have supported that account with an analysis of medical practice as a recourse role and with an account of law that emphasises not only its duty‐imposing character but also, and crucially, an embedded liberty to depart (...) from the plain requirements of a primary legal rule where in the conscientious judgment of the addressee of that law, there is ‘damn good reason’ to do so. This account of the moral nullification of law at the outer limits appears to be descriptively accurate over a wide range of law and normatively appealing not only to democratic citizens but also to professionals such as doctors and lawyers whose role involves testing the law on moral grounds and who should be ready to do so, if but only if, they believe in the good faith exercise of professional judgment that the outcome mandated by the literal application of the legal rule is inconsistent with the moral mission of their role. The argument is illustrated with cases from American and English courts which, perhaps, render plausible the otherwise paradoxical notion that the law itself admits of departures from the legal rules. (shrink)

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in TheModelofRulesI made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree (...) or social source. 1 The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and (...) also whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

The progress of electronic health technologies and biobanks holds enormous promise for efficient research. Evidence shows that studies based on sharing and secondary use of data/samples have the potential to significantly advance medical knowledge. However, sharing of such resources for international collaboration is hampered by the lack of clarity about ethical and legal requirements for transfer of data and samples across international borders. Here, the International Clinical Trial Center Network reports the legal and ethical requirements governing data and (...) sample exchange across four continents. The most recurring requirement is ethical approval, whereas only in specific conditions approval of national health authorities is required. Informed consent is not required in all sharing situations. However, waiver of informed consent is only allowed in certain countries/regions and under certain circumstances. The current legal and ethical landscape appears to be very complex and under constant evolution. Regulations differ between countries/regions and are often incomplete, leading to uncertainty. With this work, ICN illuminates the unmet need for a single international collaborative framework to facilitate DSE. Harmonising requirements for global DSE will reduce inefficiency and waste in research. There are many challenges to realising this ambitious vision, including inconsistent terminology and definitions, and heterogeneous and dynamic legal constraints. Here, we identify areas of agreement and significant difference as a necessary first step towards facilitating international collaboration. We propose the establishment of a working group to continue the comparison across jurisdictions, create a standardised glossary and define a set of basic principles and fundamental requirements for DSE. (shrink)

Domain constraint, the requirement that analogues be selected from "the same category," inheres in the popular saying "you can't compare apples and oranges" and the textbook principle "the greater the number of shared properties, the stronger the argument from analogy." I identify roles of domains in biological, linguistic, and legal analogy, supporting the account of law with a computer word search of judicial decisions. I argue that the category treatments within these disciplines cannot be exported to general informal logic, (...) where the relevance of properties, not their number, must be the logically prior criterion for evaluating analogical arguments. (shrink)

Infertility presents both medical and public health challenges, with in vitro fertilization (IVF) emerging as a prominent solution, particularly when other alternatives are exhausted. However, IVF treatment raises significant ethical questions that have been under explored in the Ghanaian context. This study aimed to explore ethical constraints and dilemmas in the provision of in vitro fertilization (IVF) treatment in Ghana. A descriptive phenomenological qualitative design was employed. Purposive sampling techniques were used to recruit 12 participants including ART experts from (...) three in vitro fertilization (IVF) centres, ethicists and a legal practitioner. In-depth face-to-face interviews guided by an open-ended interview guide were conducted. Thematic analysis of the interviews was performed to identify major themes. Providing IVF treatment in Ghana raises several ethical issues, including inequitable access due to high costs and limited availability, which favour wealthier individuals and leave marginalized populations with fewer options. There are significant ethical considerations in balancing the potential benefits of successful IVF treatment outcomes against the health risks and emotional tolls on patients. Decisions about the fate of surplus embryos present moral dilemmas, including whether to preserve, donate, or discard them. Differing personal beliefs about the moral status of the embryo further complicate the ethical landscape. Ensuring informed consent is challenging due to the complex medical, ethical, and emotional implications of IVF treatment, potentially leading to compromised consent. Additionally, there are ongoing risks of breaches in confidentiality, given the sensitive nature of reproductive health data and the importance of protecting patient privacy. This study revealed that several ethical dilemmas confront both healthcare providers and couples in the process of IVF. There is an urgent need for the development of clear and uniform regulations to govern the practice of IVF treatment in Ghana, with further attention given to mitigating financial barriers and enhancing support systems for couples considering IVF treatment. (shrink)

The integration of machine learning algorithms into the legal recommendation system marks a burgeoning area of research, with a particular focus on enhancing the accuracy and efficiency of judicial decision-making processes. The application of Bayesian Network (BN) emerges as a potent tool in this context, promising to address the inherent complexities and unique nuances of legal texts and individual case subtleties. However, the challenge of achieving high accuracy in BN parameter learning, especially under conditions of limited data, remains (...) a significant hurdle. This study proposes an Enhanced Maximum Parameter Learning (EMPL) algorithm, tailored for BN parameter optimization in scenarios characterized by small sample sizes. The EMPL algorithm, innovatively incorporating the Synthetic Minority Over-sampling Technique (SMOTE), begins with the formulation of inequality constraints derived from domain expertise. It establishes a minimal dataset threshold necessary for effective parameter learning. Through the introduction of an index weighting factor function that dynamically adjusts according to the sample size, the algorithm facilitates the derivation of refined BN parameters. The core innovation of the EMPL algorithm lies in its use of an exponentially weighted factor function, designed to be responsive to variations in sample size, and its capacity to expand the parameter space using SMOTE to align with qualitative constraints from expert insights. This approach enables the integration of data-derived parameters with those obtained through expert experience in an exponentially weighted manner, culminating in the optimization of BN parameters. Comparative analysis reveals that the EMPL algorithm achieves superior learning accuracy over traditional Maximum Likelihood Estimation (MLE) and qualitative maximum a posteriori (QMAP) approach, particularly in contexts of sparse data. Furthermore, it demonstrates enhanced performance relative to variable weight learning algorithms, underscoring its potential to significantly improve decision-making processes in the legal domain through advanced BN parameter learning. (shrink)

This paper analyzes legal fact-argumentation in the framework of the argumentation-based litigation game by Xiong :16–19, 2012). Rather than as an ontological one, an ALG treats a legal fact as a fact-qua-claim whose acceptability depends on the reasons supporting it. In constructing their facts-qua-claims, parties to an ALG must interact to maintain a game-theoretic equilibrium. We compare the general interactional constraints that the civil and common law systems assign, and detail what the civil, administrative, and criminal codes (...) of mainland China require of the suitor, the respondent, and the trier to establish their respective S-, R- and T-facts. We also offer an improved version of the legal syllogism. (shrink)

Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs when with a hard case. The reason (...) why MacCormick's theory is successful in this regard is that it offers the judge a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The former circumstance is of course important - unless we rank the interpretive arguments, the theory simply will not be able to give the judge any guid ance at all. But the latter circumstance is also cause itmeans that judges will be able to apply the theory even be though they may lack a deep understanding of the relevant field of substantive law. Judges, as is well known, are usually gen eralists, not experts in any particular field. So unlike Ronald Dworkin's subtle and intriguing theory of adjudication,80 MacCormick's theory might actually be applied by real judges in any jurisdiction. This must be considered quite an advantage. To be sure, applying MacCormick's theory to a concrete case is not always easy. But the difficulties we have encountered in applying the theory have been difficulties that would create problems for any theory of legal reasoning. Moreover, with one these difficulties can be handled within the frame work of the theory as it stands. For example, the problem of choosing between a technical and an ordinary version of plain exception which we encountered in the Boxer case, can in most cases be solved by reference to the value that underlies the textual approach, namely predictability. The problem about intentionalist arguments, which we encountered in the case of the Statutory Share, can be solved by simply adding the cate gory of intentionalist arguments toMacCormick's typology of interpretive arguments, or perhaps by placing intentionalist arguments in the category of textual arguments.81 The problem of linguistic indeterminacy, however, which we encountered in theWeber ase, appears to be more or less impossible to solve. If and to the extent that the words that occur in the statute are vague or ambiguous - in their ordinary or in their technical meaning, or in both - the value of the textual approach is clearly reduced. The judge must then proceed to consider systemic and teleological arguments in that order. (shrink)

Although much legal scholarship discusses the meaning of the religion clauses of the U.S. Constitution, very few articles analyze the ways in which state regulation affects actors' incentives to engage in religious behavior. Yet the question of how a law influences religious behavior is important for determining whether various laws are desirable, and whether they violate constitutional constraints. This article draws on recent economic models of religious organization to analyze the ways in which laws affect the behavior of (...) religious groups. Religious groups produce collective goods for their members, and the effect of laws can be analyzed by examining how they modify the payoffs members receive for cooperating or free riding. The article examines the use of laws to establish religious groups, to subsidize them with cash or tax benefits, to provide accommodations for them, to provide symbolic support for them, to provide secular substitutes for the collective goods they produce, and to regulate disputes between members. The article also briefly discusses the constitutional implications of the analysis. (shrink)

We examined the dilemmas posed by the involvement of expert witnesses in court cases and the institutional constraints on the ethics of expert testimony. The causes for the incorporation of bad science into legal decisions, potential solutions to this dilemma, and the limitations of these solutions are considered. We concluded that law, science, and experts must respond to the problems posed by expert witnessing.

Cost‐containment pressures impose fiscal responsibilities upon physicians that can conflict with their fiduciary commitment to patients. Should the law permit health care providers to adjust standards of care according to patients' financial resources? The legal concept of “rebuttable presumption” should be used to reconceive the traditional requirement of a uniform standard of care.

This paper analyses some current jurisprudential and conceptual issues in evidence and procedure from the perspective of a computational legal theory. It introduces a specific investigative device, Trojans operated by police during crime investigation, and analyses whether current formal approaches to legal reasoning can be modified in such a way that the software code underlying this device can represent the relevant legal constraints that should govern its operation. We will argue that traditional formalist theories of (...) class='Hi'>legal reasoning are typically restricted to reasoning within a system, and incapable therefore of making the notion of “legal system” sufficiently explicit. We discuss possibilities to expand on these approaches and identify the necessary elements of a computational theory of legal reasoning in an age of porous borders.Resumen:En este ensayo se analizan algunos tópicos conceptuales y filosóficos de actualidad sobre el procedimiento y las pruebas desde la óptica de una teoría del derecho computacional. En él se presenta un mecanismo específico de investigación, relativo a los “troyanos” operados por la policía durante la investigación de delitos, y analiza si los enfoques formales contemporáneos sobre el razonamiento jurídico pueden ser modificados de tal modo que el código de sofware que subyace a este mecanismo puede representar las limitaciones jurídicas relevantes que deberían regir su operación. Los autores sostienen que las teorías formalistas tradicionales del razonamiento jurídico se limitan por lo general al razonamiento dentro de un sistema y, por lo tanto, son incapaces de hacer la noción de “sistema jurídico” suficientemente explícita. Asimismo, se discuten las posibilidades de ampliar estos enfoques e identificar los elementos necesarios de una teoría computacional del razonamiento jurídico en una era de fronteras porosas. (shrink)

The generally agreed upon principle that legality and ethics can come apart is frequently overlooked in our professional ethics education and decision-making procedures. The crux of the issue is that we teach in our philosophy classes that the law can sometimes be unethical, but then clearly state in nursing codes of ethics that students should always follow the law. The law could no doubt give us some reason to choose action A over action B, but in professional contexts we frequently (...) treat the law as a side-constraint that limits the logical space of choices to exclude even consideration of action B. If B is the mandatory action, this in effect forces professionals to do something unethical by preventing them from ever seeing the ethical action as an option. This is a problem. Ultimately we concede that there might be an irresolvable tension in competing normative interests in ethics and the law, though we suggest that a more nuanced approach to ethical code formation could help alleviate the issue somewhat. (shrink)

Adequate treatment of pain is essential to alleviate suffering, yet studies show that patients with terminal or serious illness receive inadequate pain relief. In the case of terminally ill patients, adequate palliation of pain may be likely to reduce requests for physician-assisted suicide. This issue of the journal addresses barriers to effective pain relief and suggests how treatment of pain can be improved. The symposium features the Pain Relief Act, which is designed to provide practitioners who prescribe controlled substances for (...) pain with protection from inappropriate legal sanctions. The Act is the product of the Project on Legal Constraints on Access to Effective Pain Relief, whose principal investigators were Nancy Neveloff Dubler, LL.B., Sandra H. Johnson, J.D., LL.M., Robert J. Levine, M.D., and Benjamin W. Moulton, J.D., M.P.H.The Project was supported by the Mayday Fund and the Emily Davie and Joseph S. Kornfeld Foundation. (shrink)

Does Duncan Kennedy successfully cannibalize jurisprudence? He attempts to do it by demonstrating the inexistence of rightness in legal argumentation. If there is no right legal argument, then there is no right answer in adjudication, adjudication is not a rational enterprise and legal doctrine cannot be said to be a science. It can be shown that skepticism is self-defeating. Duncan Kennedy can avoid self defeat only because he actually believes in a lot of legal arguments. His (...) thesis that judges decide questions of policy without any methodology that distinguishes them from legislators does not hold. Judicial reasoning is subject to constraints that do not affect legislators. It must be based on the sources of law and is limited by rules of procedure. Even when the judges have ‘interstitial’ legislative powers they are, unlike the legislator, bound to fit the system and their decisions are considered in procedure from the perspective of the right answer doctrine. The only work that can convincingly refute the skeptic argument against legal science is the reconstruction of jurisprudence as a scientific enterprise. Such work is beyond the scope of any single paper. The article aims to give some inspirations for such a task. (shrink)

How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official act suitably communicated. (...) But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.

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On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and (...) civil society : law and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

This paper explores the extension of formal accounts of precedential constraint to make use of a factor hierarchy with intermediate factors. A problem arises, however, because constraints expressed in terms of intermediate factors may give different outcomes from those expressed only using base level factors. We argue that constraints that use only base level factors yield the correct outcomes, but that intermediate factors play an important role in the justification and explanation of those outcomes. The discussion is illustrated (...) with a running example. (shrink)

Legislative writing, which is one of the key genres in the practice of law, has mostly been overlooked in pedagogic applications in English for Legal Communication (ELC), even though more than any other professional writing, it demonstrates very typical and distinctive use of linguistic and other semiotic resources, including some of the specific rhetorical conventions and constraints. However, it is surprising that despite its distinctive prominence in legal practice, it has never figured in English for Legal (...) Communication programmes. It seems to be the result of pedagogic convenience rather than curriculum need. In this paper, I would like to argue for the inclusion of legislative genres in English for Legal Communication curriculum design as input to teaching materials, to make it easier for learners to understand and interpret other forms of legal communication, such as cases, judgements, contracts, agreements, and even courtroom interaction. (shrink)

Unlike statutory law, which relies on the explicit formulation of rules, common law is thought to emerge from a complex doctrine of precedential constraint, according to which decisions in earlier cases constrain later courts while still allowing these courts the freedom to address new situations in creative ways. Although this doctrine is applied by legal practitioners on a daily basis, it has proved to be considerably more difficult to develop an adequate theoretical account of the doctrine itself. Drawing on (...) recent work in legal theory, as well as AI and law, this book develops a new account of precedential constraint and the balance achieved in the common law between constraint and freedom. This account, which involves construction of a group priority ordering among reasons, is then applied to other topics including the semantics of open-textured predicates and the practice of making exceptions to general rules. (shrink)

The article considers two different interpretations of the reason model of precedent pioneered by John Horty. On a plausible interpretation of the reason model, past cases provide reasons to prioritize reasons favouring the same outcome as a past case over reasons favouring the opposing outcome. Here I consider the merits of this approach to the role of precedent in legal reasoning in comparison with a closely related view favoured by some legal theorists, according to which past cases provide (...) reasons for undercutting (or ‘excluding’) reasons favouring the opposing outcome. After embedding both accounts within a general default logic, I note some important differences between the two approaches that emerge as a result of plausible distinctions between rebutting and undercutting defeat in formal models of legal reasoning. These differences stem from the ‘preference independence’ of undercutting defeat. Undercutting reasons succeed in defeating opposing reasons irrespective of their relative strength. As a result, the two accounts differ in their account of the way in which precedents constrain judicial reasoning. I conclude by suggesting that the two approaches can be integrated within a single model, in which the distinction between undercutting and rebutting defeat is used to account for the distinction between strict and persuasive forms of precedential constraint. (shrink)

This chapter contains sections titled: The Moral Duty to Assist Others in Their Health Care Health Care Should Be Provided by the Government The Duty to Provide Truly Universal Health Care Rejecting the Liberal Model.

It appears that we know surprisingly little about how judges frame linguistically the rationale behind their decisions and how such texts are structured. Using the concept of rhetorical moves, this paper adopts a genre-based approach to examine the rhetorical structure of legal justifications provided in the decisions of the Polish Constitutional Court. The goal of the study is to verify the claim that the way justifications are drafted is becoming more and more uniform and conventional. The results show that (...) there is a common core of rhetorical structure realized by means of recurrent functional segments of text. This paper proposes a prototypical move structure of a Constitutional Tribunal justification and it argues that that the way justifications are drafted are subject to very concrete, even if not explicitly stated constraints. (shrink)

Since Herbert Hart’s “fresh start” encouraged us to interpret legal and political phenomena from an “internal point of view,” and Lon Fuller pointed out the severe constraints upon a conceptually viable construction of this view, jurisprudence has had little choice but to become, methodologically speaking, genuinely and critically sociological. By this, we mean that in breaking with the common-sensical half-truths which produced the imperative or command theory of law, the conceptual problem of modelling the practical rationale of the (...) legal enterprise for the purposes of a general description of the phenomenon as subject matter, has become central and acute. In the past 20 years or so, the sociological awareness of the need to transcend the flux of empirical subjectivity, as well as important recent reinterpretations of the tradition of Natural Law, does seem to put jurisprudence within striking distance of achieving a mature status of integration with the methodology of the social sciences; not merely as some adjunct to, or opportunity for, empirically oriented “social studies,” but, as the source of a genuine epistemological synthesis in the approach to the problem of conceptualising the very subject matter of social science, namely, social action at the institutional level. In terms of concept formation this has gone some way towards the rehabilitation of the idea of “essential” or “focal” viewpoints in contrast to the enthusiasm for the contingencies and relativity of historical, linguistic and cultural conventionalisms. (shrink)

This article describes law's encounter with deconstruction, and how it changed deconstruction. In the hands of lawyers, deconstruction became a set of rhetorical strategies for critiquing legal distinctions and showing their ideological character. Legal scholars used deconstructive arguments to offer normative prescriptions in ways quite different from literary critics or philosophers. Although in theory all texts and distinctions are deconstructable, legal scholars assumed that some interpretations were better than others. Legal deconstruction thus became a set of (...) repeatable rhetorical practices used for pragmatic purposes; and it revealed that these rhetorical and pragmatic features were already present in literary and philosophical deconstruction. Deconstruction's encounter with law also overturned several popular assumptions about deconstruction. First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valence as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate. (shrink)

Web legal information retrieval systems need the capability to reason with the knowledge modeled by legal ontologies. Using this knowledge it is possible to represent and to make inferences about the semantic content of legal documents. In this paper a methodology for applying NLP techniques to automatically create a legal ontology is proposed. The ontology is defined in the OWL semantic web language and it is used in a logic programming framework, EVOLP+ISCO, to allow users to (...) query the semantic content of the documents. ISCO allows an easy and efficient integration of declarative, object-oriented and constraint-based programming techniques with the capability to create connections with external databases. EVOLP is a dynamic logic programming framework allowing the definition of rules for actions and events. An application of the proposed methodology to the legal web information retrieval system of the Portuguese Attorney General’s Office is described. (shrink)

This article examines some of the interactions between law, science, and society taking place during a trial. By focusing on a restricted set of scientific and nonscientific actors engaged in negotiating the meaning, relevance, and reliability of scientific evidence, the article illustrates how the categories—law, science, and society—are inextricably interrelated in the legal negotiations and outcome. The introduction of scientific evidence into adversarial legal settings produces strategies, opinions, and claims that are not shaped solely by scientists, lawyers, or (...) legal processes. The situated law-science negotiations provide a site where social order and scientific knowledges are mutually constituted. The outcome of specific law-science interactions will be open to a range of readings and constraints that are not reducible to some putatively correct scientific understanding nor adequately described as the distortion of scientific evidence by the legal system. (shrink)

River conservation is rooted in the importance of managing watersheds (D.A.S.) in Indonesia, with 42,210 watersheds forming the basis for management policies. To ensure ecosystem sustainability, these policies consider various aspects such as land conditions, water quality, and regional land use. However, the reality on the ground shows that rapid urbanization and a lack of public awareness have led to river pollution and damage to riverbanks. Therefore, more robust conservation efforts are required to achieve environmental justice. This research employs a (...) normative juridical method and focuses on the Cirebon area. The findings reveal that implementing urban river conservation policies in Cirebon includes controlling illegal construction, conducting community outreach on the importance of river protection, and executing environmental rehabilitation programs to raise awareness of the negative impacts of unauthorized development. Despite progress in data collection and action planning, challenges such as community resistance and budget constraints continue to hinder the effectiveness of policy implementation. Collaboration between the Government, communities, and other stakeholders is essential to ensure the success of these conservation efforts. (shrink)

We propose simple nonlinear mathematical models for the legal concept of balancing of interests. Our aim is to bridge the gap between an abstract formalisation of a balancing decision while assuring consistency and ultimately legal certainty across cases. We focus on the conflict between the rights to privacy and to the protection of personal data in Art. 7 and Art. 8 of the EU Charter of Fundamental Rights (EUCh) against the right of access to information derived from Art. (...) 11 EUCh. These competing rights are denoted by ( \(i_1\) ) _right to privacy _ and ( \(i_2\) ) _access to information_; mathematically, their indices are respectively assigned by \(u_1\in [0,1]\) and \(u_2\in [0,1]\) subject to the constraint \(u_1+u_2=1\). This constraint allows us to use one single index _u_ to resolve the conflict through balancing. The outcome will be concluded by comparing the index _u_ with a prior given threshold \(u_0\). For simplicity, we assume that the balancing depends on only selected legal criteria such as the social status of affected person, and the sphere from which the information originated, which are represented as inputs of the models, called legal parameters. Additionally, we take “time” into consideration as a legal criterion, building on the European Court of Justice’s ruling on the right to be forgotten: by considering time as a legal parameter, we model how the outcome of the balancing changes over the passage of time. To catch the dependence of the outcome _u_ by these criteria as legal parameters, data were created by a fully-qualified lawyer. By comparison to other approaches based on machine learning, especially neural networks, this approach requires significantly less data. This might come at the price of higher abstraction and simplification, but also provides for higher transparency and explainability. Two mathematical models for _u_, a time-independent model and a time-dependent model, are proposed, that are fitted by using the data. (shrink)

This paper argues that formal models of coherence are useful for constructing a legal epistemology. Two main formal approaches to coherence are examined: coherence-based models of belief revision and the theory of coherence as constraint satisfaction. It is shown that these approaches shed light on central aspects of a coherentist legal epistemology, such as the concept of coherence, the dynamics of coherentist justification in law, and the mechanisms whereby coherence may be built in the course of legal (...) decision-making. (shrink)

This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be added piecemeal while (...) the rule remains. The first portion of the dissertation rebuts a prominent criticism leveled at a large class of theories of legal reasoning that includes my theory. The charge is that no coherent theory can recognize both the difference between distinguishing and overruling, and the constraint of precedent. The critics argue that is more important than and that can only be explained by monotonic legal rules. Drawing on cognitive psychology as well as legal theory, I show that coherent theories, such as my own, can accommodate both and. The second chapter provides motivation for understanding precedential constraint in terms of non-monotonic default rules and introduces my positive theory, which elaborates on John Horty's work in treating legal rules as prioritized defaults involving reasons. I motivate and implement a relaxation of Horty's restrictions on the form of rules to allow a more fine-grained characterization of precedent. Finally, I explore the relationship between these relaxations and the concept of precedent. The final section explains how my theory fits into the traditional jurisprudential ecosystem. I demonstrate that, contrary to assertions in the legal theory literature, this non-monotonic approach is entirely compatible with positivism's commitment to extracting rules from authoritative legal sources, namely court opinions. I also suggest how it might be attractive to law and economics theorists, pragmatists, and followers of Dworkin. (shrink)

Although military personnel are required to follow all legal orders, morally the traditional contract between soldier and state rests on shared assumptions about the purposes for which national militaries will and will not be used.

In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues authoritatively. The roots of this (...) short-sighted view are found in primitive mechanical models of relationships in the empirical and social world – those of objective causality and determinism. Insofar as it is believed that if we had sufficient data a clear and unequivocal answer would be available to each question, admission of uncertainty is seen as a sign of insufficiency, incompetence, impotence, and is avoided whenever a decision that must be seen to be based on valid reasons, cannot be avoided. Avoidance of some decisions, duplicity in others, is the result. -/- Decision-making must be restructured to recognize the provisional and context-bound validity and relevance of the models we use to conceptualize and order our understanding of phenomena, and to utilize this awareness as an instrument in the production of legal policies and decisions that will be authoritative precisely because they are honestly accurate and socially responsible. The paper makes a start on such a re-structuring of the legal process by exploring the implications of the observation that if law is to be “just”: 1) legal policy must be based on accurate information and rationally related to social goals; and 2) decisions applying policy to individual fact situations must be based on assumptions that are both relevant and accurate. -/- Reasons for determinations of fact must be given, otherwise the presumption that the trier of fact is “reasonable” is an unconditional licence to use private modes of logic and theories of social and natural science. What is not disclosed cannot be challenged on grounds of invalidity or irrelevance. Use of “objective validity” as a standard to evaluate conclusions made by the trier of fact in contentious cases would only serve to beg all important questions by concealing: 1) fundamental normative conflict, and 2) the limited nature and applicability of many validity claims. -/- Our use of the phrases “undue risk,” “public interest,” “reasonable,” and “necessary,” reflects the weight we choose to give conflicting social values and goals when we must make decisions in relative ignorance of all the consequences. “Objective criteria” are of limited utility in legal decision-making because their social meaning is derivative. Policy generation in the absence of any coherent conceptual-normative framework, use of vague terminology in legislation stating policy, and the absence of rational means to distinguish between individual cases to which decision-makers are required by law to apply policy, make it inevitable that many legal “decisions” made in the guise of determinations of objective fact, are charades, an arbitrary, capricious, intuitive, subjective (and thus private) use of public decision-making power. -/- Law must alter its aspirations and recognize that rational decision-making is a process that can occur only within parameters set by present knowledge and societal preference structures. Only by working with the constraints imposed by these parameters is it possible to achieve “just” decisions. Where no rational basis for differentiating cases exists, “individualized justice” must be avoided and public policy articulated in law applied uniformly to all cases in a class. The terms “reasonable” and “necessary,” used to describe policy and its consequences for specific cases, must be understood to represent provisional societal assessments, attempts to implement societal preference structures in the face of limited knowledge. Heightened awareness of the limited nature of our knowledge can only result in legal policies that have a more explicit normative basis. (shrink)

The rich evade conviction more often in criminal trials than the poor. They also win more often in civil cases against the poor. Given that money buys better lawyers and better lawyers are instrumental in winning in adversarial trials, the rich have a structural advantage in laissez-faire trial systems. Such inequality is concerning. In a landmark article, Alan Wertheimer argues that we should level down legal resources in civil cases on the basis that doing so increases the adversarial system’s (...) accuracy—that is, its chance of reaching correct decisions. In a more recent article, along similar lines, Shai Agmon also advocates that, given some constraints of adequacy, legal resources should be leveled down in both civil and criminal cases. This article aims to show that such arguments fail because leveling down legal resources could decrease a trial system’s accuracy, making it worse by Wertheimer’s or Agmon’s own criteria. (shrink)

ABSTRACTAccording to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections (...) on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models. (shrink)

In The Concept of Law, H. L. A. Hart propounds three central theses about the nature of law: a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition ; there are no necessary substantive moral constraints on the content of law ; and judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide (...) hard cases by creating new law and not by applying existing law . ;Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In "The Model of Rules I," Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, "a sense of appropriateness developed in the profession and the public over time." Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false. ;In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the (...) constraint that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

Would compulsory treatment or vaccination for Covid-19 be justified? In England, there would be significant legal barriers to it. However, we offer a conditional ethical argument in favour of allowing compulsory treatment and vaccination, drawing on an ethical comparison with external constraints—such as quarantine, isolation and ‘lockdown’—that have already been authorised to control the pandemic. We argue that, if the permissive English approach to external constraints for Covid-19 has been justified, then there is a case for a (...) similarly permissive approach to compulsory medical interventions. (shrink)

This article argues that legal positivism is best understood as a political tradition which rejects the Separation Thesis—the thesis that there is no necessary connection between law and morality. That tradition was committed for some time to eliminating the conceptual space in which the common law tradition and its style of reasoning operate. A genealogical reconstruction of the tradition shows that when positivist judges are forced to operate in that space, they have to adapt their own style of reasoning (...) to some of the constraints of that space. That most contemporary positivists will attempt to disown such judges is symptomatic of deep problems in contemporary positivism, problems which stem from the attempt to detach positivism from its political tradition. So a recent neo-Benthamite revival in legal theory is welcome. Not only does it reunite positivism with its political tradition, but it also opens the way for a productive debate between positivism and its critics. ‘As for the philosophical approach, once so lively and dominant, it seems at times today rather tired, and exhibits its unease by seeking revitalization in flirtations with the absurd. But the problems of legal theory remain as fascinating as they ever were, and, if there is any grand message in these essays, it is that the historical study of legal institutions may have more to offer to their solution than has yet been appreciated’.1. (shrink)

Children’s and young persons’ rights have received increasing been focus in recent decades, due in a significant degree to the UN Convention on the Rights of the Child. In Sweden, compulsory care in the social-services system is disputed, not least for the forceful measures that facility personnel have at their disposal to control children in certain conflict situations. The general aim of this article is to examine how the increased emphasis in Sweden on children’s rights is promoting resilience for children (...) and youth in youth compulsory secure-care settings. A more general question is whether the child-rights discourse leads in practice to increased resilience for children and youth in this setting, or even in general. The empirical material shows that children and young people’s perceptions of care and treatment are strongly linked to their interactions with staff and how the staff use restrictive measures. Applying Martha Fineman’s vulnerability theory in this context means that achieving resilience demands an analysis of the institutional settings in which children and young persons live their day-to-day lives, including their relationships in this setting. Comparing the legal possibilities of physical constraint with interviews of children and personnel reveals that relevant legislative frameworks and children’s-rights discourse should serve as a protection mechanism for children and youths, but in real life, these seem to have limited effect. (shrink)