Background: Adequate immunity to COVID-19 apparently cannot be attained in Germany by voluntary vaccination alone, and therefore the introduction of mandatory COVID-19 vaccination is still under consideration. We present findings on the potential acceptance of such a requirement by the German population, and we report on the reasons given for accepting or rejecting it and how these reasons vary according to population subgroup. -/- Methods: We used representative data from the Socio-Economic Panel for the period January to December 2021. (...) We linked the respondents’ answers concerning mandatory COVID-19 vaccination to information about their sociodemographic characteristics, state of health, political attitudes, and degree of confidence in the judicial and political systems. We analyzed these data using univariate, bivariate, and multivariate statistical methods. -/- Results: Just over half of the respondents (50.44% [49.08%; 51.79%]) favored mandatory COVID-19 vaccination. Among the supporters, the reason most frequently given (95.22% [94.45; 96.00]) was that, without such a requirement, not enough people would be vaccinated. Among the opponents of mandatory COVID-19 vaccination (49.56% [48.21%; 50.92%]), by far the most common reason given for opposing it was a desire to uphold individual freedom (91.36% [90.31%; 92.40%]). Persons supporting mandatory COVID-19 vaccination, on average, older than those who opposed it; they less commonly had an education beyond secondary school, were less healthy, tended to have no children, had centrist political views, and expressed more confidence in the political system. The largest difference between the two groups was that about 90% of supporters of mandatory COVID-19 vaccination were themselves vaccinated, compared to only about 62% of opponents. -/- Conclusion: The lack of consensus on this issue among politicians and physicians in Germany is reflected in a similar lack of consensus in the German population as a whole. A discussion of the appropriate understanding of individual freedom would be the most promising way to widen the acceptance of mandatory COVID-19 vaccination. A commonly expressed conception of freedom that permits the deliberate endangerment of other people’s health seems morally questionable. -/- DOI: 10.3238/arztebl.m2022.0174. (shrink)

Since the election of Philippine President Rodrigo Duterte in 2016, extra-judicial killings have become commonplace as a result of his administration’s declaration of war on drugs. Empirical cross-national work on examining determinants behind state repression remains scant especially in understanding the phenomenon at the sub-national level. This study investigates what accounts for variations on EJKs at the level of Philippine provinces. Using monthly panel-data for 62 provinces and employing various count-model regressions, the findings indicate that Philippine provinces which (...) have large populations, stronger state capacity, and are more affluent in terms of the human development index are more likely to exhibit higher rates of EJKs. Furthermore, the vote share of the President in the 2016 elections and presidential visits to specific provinces are correlated with higher incidences of EJKs—corroborating theories on delegative democracies and penal populism. Lastly, it is found that drug-prone provinces are more likely to experience a higher share of human rights violations in terms of EJKs, compared to provinces that have lower affectation rates. The implications suggest that the Philippine war on drugs seem to promote vertical accountability as international criticism and domestic opposition mounts. (shrink)

A situation in which luck determines what happens in our lives is composed of two elements: the existence of a multiplicity of possible outcomes, and lack of control over the situation, namely that we have no way, or at least no meaningful way, to affect the outcome. Adjudication is a luck situation: law is indeterminate and in a decent society litigants are not supposed to have control over their judges. Can we minimize luck in adjudication? The primary way to do (...) this is to make every decision given in the system resemble as much as possible the decision that would have been reached by the majority of the judges active in the system had they all been given the opportunity to decide the case at hand as a group. Put differently, luck in judicial decisions can be lessened by increasing the number of judges in panels. Even though in a decent society the option of controlling the conduct of judges is out of the question, several means do exist for litigants to employ some control over the identity of the persons who are to resolve their disputes. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The English Polydaedali:How Gabriel Harvey Read Late Tudor LondonNicholas PopperHarvey and GauricoIn 1590 Gabriel Harvey read his copy of Luca Gaurico's 1552 Tractatus Astrologicus, a collection of genitures and commentaries for cities and individuals.1 Harvey had spent the previous twenty-five years at Oxford and Cambridge, mastering Greek and Latin, earning renown as a rhetorician, and promoting English letters. He was a well-known partisan of the French Calvinist Peter Ramus, (...) whose works on curriculum reform had sparked vicious [End Page 351] controversies in the English universities. But Harvey read Gaurico far removed from the schools where he had acquired fame and notoriety as an orator and poet. He had recently relocated to London, where he daily faced a dense, active city unlike his native Saffron Walden and the university towns. Nevertheless he read as he always had, carefully recording his reactions in the margins of the printed text, filling blank spaces with his own commentaries on the subjects presented by Gaurico. The notes disclose an experience of reading that intervened in contemporary debates regarding technology, astrology and utility.2 They also place Harvey among a group of scholars in London in the 1590s, such as Francis Bacon and Hugh Plat, who were examining the benefits local artisans might offer the commonwealth and reconsidering the intellectual status of craft knowledge.Harvey read and annotated Gaurico on several occasions, but the particular strain of notes that I will follow, united by a common ink and hand, engages the learning and erudition of Gaurico's subjects.3 Concentrated almost [End Page 352] exclusively in Book Four, which discussed learned men, these annotations evaluate the poets, philosophers, philologists, and others whom Gaurico had canonized as especially learned.There are only spare annotations prior to Book Four. On the title page of Book Two, devoted to churchmen, Harvey observes the quality of the individuals Gaurico presented and details his own method of evaluation:The most excellent Exemplars of this century [are] in Gaurico, and Cardano: Giovio, and Guiccardini. There are as many of the wisest men as of the greatest actors. Still others live, whether inferior, equal, or superior. And it is of interest to every skillful artificer, to know those most outstanding in their class, and the most celebrated professors of all. Certainly it is very profitable to observe exquisitely the most perfect artificers either of the world or of neighboring nations, or at least of your own people, and to consider with most cunning reason what it is, where it comes from, and what is most excellent. But seriously, and solidly, and always to the point, seeing that singular things are efficacious and are useful to polytechnoscopy. It is judicious to avoid all trivial detail, and to consider only the most pregnant theorists and practitioners of operating.4The notion of a sophisticated form of active knowledge labeled "polytechnoscopy" is the most striking element of this passage. This term seems to have been Harvey's own invention, with no direct precedents; nor was it adopted or used by others after him.Harvey repeatedly referred to polytechnoscopy in his notes. A carefully designed triptych annotation on the title page of Book Four clarifies it as a category uniting practice and knowledge. To the left Harvey wrote, "it is my task to observe the most excellent examples of this age which are useful for polytechnoscopy." On the right, "a polytechnic, polymechanic, polydaedalic, and almost panepistemic book; and likewise sufficiently polychristian. For philologists should be skimmed through; while polytechnics should be examined closely; as I did not only in the Lives of Giovio, but also in those of [End Page 353] Laertius, Eunapius, Philostratus, and others."5 The related Greek descriptors "polymechanic" and "polydaedalic" shed further light on polytechnoscopy. This constellation of terms refers to a method of garnering information by deploying technical knowledge. While not a systematic discipline, its practices—active applicability, craft expertise, observation of experience—constitute a significant realm of learning.In the central panel of the triptych, Harvey notes:[I] compared [this] to Giovio's Elegies of Learned Men. Give me the best man outdoors, and his image at home. For even true life is... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 13.1 (2003) 53-64 [Access article in PDF] Incentives for Providing Organs Patricia Milmoe McCarrick and Martina Darragh After a contentious debate at its 2002 annual meeting, the American Medical Association's House of Delegates voted to endorse the opinion of its Council on Ethical and Judicial Affairs that the impact of financial incentives on organ donation should be studied (Josefson 2002). The shortage of (...) organs for transplantation has been an ongoing problem for more than 20 years. In June1981, Representative Philip Crane (R-IL) introduced legislation in the U.S. House of Representatives proposing a $25,000 income tax deduction and a $25,000 estate tax exclusion for donating an organ (Tax Incentives 1981). Still the National Organ Transplant Act enacted in October 1984 prohibited the offering of any "valuable consideration" in return for organs (United States 1984).The developments of a legal market for tissues in the United States and a black market for organs around the world have raised the question of whether donation without compensation is the only ethically viable option. Some critics of the current system claim reliance on donation actually promotes a black market in organs (Kaserman and Barnett 2002, p. 38; Palmer 1999, p. 36). In addition, a new set of compensation issues has arisen as living kidney donor transplantations begin to rival those performed with cadaveric organs (United States 2001).As a result, current suggestions for incentives go far beyond the traditional death benefit payment to include such ideas as medals of honor for donors, reimbursement for funeral expenses, exchange programs for organ donation, and special medical insurance for living organ donors. Numerous bills introduced into the 107th Congress have proposed such incentives (Delmonico et al. 2002.) In October 2002, the U.S. Department of Health and Human Services awarded $5.2 million in grants to study both clinical and behavioral interventions for increasing organ donations that do not involve incentives. The inspiration for some of the funded proposals comes from the successes of Spain's social services and the United Kingdom's clinical administration of organ procurement programs (Robeznieks 2002). [End Page 53]With a nod to evidence-based medicine, the underlying concern expressed in much of the current literature is that no idea for increasing the supply of organs should be discounted before it is studied. This bibliography provides a short introduction to the range of opinions expressed on the issue of incentives for providing organs.al-Mousawi, M.; Samhan, M.; al-Mezairee I.; Razzak, M.A.; and Khawari, F. Cadaver Organ Procurement in Kuwait. Transplantation Proceedings 31 (8): 3375-76, 1999.The authors describe a protocol that significantly increased cadaveric organ donation and credit it with fostering the expansion of an organ sharing program among the Arab Gulf states. Developed by Kuwaiti neurologists and anesthetists after a continuing education course on transplantation, the protocol places a special emphasis on the role of local transplant coordinators who facilitate the investigation of brain death cases by neurologists.Arnold, Robert; Bartlett, Steven; Bernat, James; et al. [Ethics Committee of the American Society of Transplant Surgeons] Financial Incentives for Cadaver Organ Donation: an Ethical Reappraisal. Transplantation 73 (8): 1361-67, 27 April 2002.To prepare for proposed studies of financial incentives for organ donation, the American Society of Transplant Surgeons convened a panel to develop a methodology for evaluating the ethics of such research. Comprised of organ procurement organization executives, physicians, surgeons, and ethicists, the panel generated a list of nine criteria for use in judging any incentives proposal. While opposed to direct payment or tax incentives for organ donation, a majority of the members support funeral expense reimbursement or charitable contributions as incentives that would not violate or undermine the ideal of altruism.Cameron, J. Stewart, and Hoffenberg, Raymond. The Ethics of Organ Transplantation Reconsidered: Paid Organ Donation and the Use of Executed Prisoners as Donors. Kidney International 55 (2): 724-32, February 1999.After reviewing arguments for and against payment for organ procurement, the authors apply these arguments to the specific case of obtaining organs from executed... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Matthew S. Santirocco JUSTICE IN SOPHOCLES' ANTIGONE Sophocles' Antigone is most often apprehended in terms of conflicts, an approach which the play does indeed invite. The personal clash of Antigone and Creon generates conflicts on many different levels— political (individual or family vs. state, aristocracy vs. democracy), theological (gods vs. men), philosophical (nature vs. law or convention), sexual (woman vs. man), even chronological (young vs. old). However, insofar as (...) no list can ever be so inclusive as the play itself, all such discussions tend by their very nature to be reductionist. And even if a balanced critique were possible at this level, a tragedy is not the sum of abstract conflicts; it is theatre, people in action. Furthermore, the conflict approach encourages us to ask the wrong questions. Although conflict need not imply resolution, critics persist in searching for it. Yet there is no resolution in the Antigone except by death. Similarly, such an approach invites us to ask who is right, Antigone or Creon. But in a very real sense this question misses Sophocles' point. Relevant, perhaps, to versions by Anouilh and Brecht, the question misleads when applied to the ancient play. It is interesting that we oversimplify, for Sophocles' sympathies are more expansive and complex than these modern interpretations of his myth. For all these reasons a valid alternative approach to the play may be to consider it not in terms of the conflicts incarnated in the personalities but rather in terms of one theme in the context of which all the conflicts are played out. The precise issue here, as so often in Greek tragedy, is a philosophical one. As the religious thought of an earlier era was yielding to judicial and political thought, and as older heroic ideals were being supplanted by a rationalistic view of man, tragedy's function in fifth-century Athens was, in part at least, to expose and explore these cultural displacements, either by affirming traditional values and concepts or else by questioning their continued validity. One such concept, perhaps the most recurrent in tragedy, 180 Matthew S. Santirocco181 is justice, dike. Originally a term used to refer to things as they are, dike came also to acquire a normative sense, things as they ought to be. At different times and in different contexts the word can signify custom or usage, law-enforcing authority, penalty, and ofcourse "justice" as a higher standard. Its precise semantic range is wide and fluctuating. Thus tragedy becomes, in a sense, a matter of vocabulary. In the Antigone the characters appeal to justice, but each defines it differently, so that the conflict is not so much between justice and injustice as between one sort of justice and another. The Oresteia of Aeschylus had earlier celebrated the transition from vendetta justice to courtroom justice. The Antigone, however, focuses not so much on the changes in dike as on a question these changes raise, namely the very possibility of dike. The establishment of the law court brought Aeschylus' trilogy to a resolved ending. Sophocles' vision in the Antigone is much more austere. Although he acknowledges the existence of an ideal of justice, he exposes the tensions and ambiguities inherent in it and thereby questions whether that ideal can ever be realized in the lives of men. II A key text concerning justice is contained in one of the choral odes. But can it be trusted? The tragic chorus is not, after all, the mouthpiece of the poet as was the comic chorus in Aristophanes' parabaseis. Nor is it always or necessarily the mouthpiece of the audience, SchlegeFs "ideal spectator." In the Antigone, as elsewhere, the chorus simply constitutes a panel of the population (here, of Thebes) and its perspective on the action is, if not omniscient, not particularly partisan either. Gordon Kirkwood has demonstrated the many dramatic functions of the Sophoclean chorus, including its ambiguities. In the Antigone no fewer than three odes are ambiguous, leaving in doubt the identity of the one who has disturbed order and right (332-75), who has violated the will of heaven (582-625), and whose mind has been perverted by love (781-816). Although the chorus may not be aware of the... (shrink)

This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). In each case the (...) proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:PHARAOH'S.MAGICIANS: THE ETHICS AND EFFICA:CY OF HUMAN FETAiL TISSUE TRANSPLANTS ROBERT BARRY, O.P. Program for the Study of Religion University of Illinois, Champaign-Urbana DARREL KESLER Department of Animal Sciences University of Illinois, Champaign-Urbana. IN RECENT YEARS increasing attention ha;s been given to v:rurious types of scientific riese,arch involving the human fetus. In the 1970s, :a tremendous amount of concern was expres1 sed IJ.'egiaroing the fetus,a;.s a rSU!bject of e~erimenrtation. (...) In this debate, the announced " research impeiiat:i:ve " was pos,ed against other moral imperativ;es.1 Following much soctiet :JaJl drebarte, protootlive meiaisumeis 1 WeIDe il!dopited 1by oompireihensive regiutatiions in 1975 estaiblishiing protections foT a number of research sUibjects. These regulrutions protect the fetus from non-beneficiail experimentation. that iworuild pose more than minima;l risk rto the fetus. Current debates in science and ethics now swirl arlOiund a new topic regarding human '.fetal life: the fetus as a sourrce of tissue for triansplaintation into other persons ais run e~erimental thempy. It is an issue that is rapidly moving torward the same Jevel of" research imperative" as did the earlier debate on the 1 See Paul Ramsey, The Ethics of Fetal Research (New Haven: Yale University Press, 1975): "Today one often hears statements like' Fetal Research must be done,' or 'It would be immoral not to do this research'" (P. xv). The validity of such opinions and utterances entirely depends on a netbenefits ethics, and the validity of that moral universe has been called increasingly into question in recent years. 575 576 ROBERT BARRY, O.P. AND DARREL KESLER ~etus as subject. Recently,,a new level of intensity was added to this deharte rby the imposition of an indefinite moratorium on federal support for research on transplantrution experiments inv;olving human.fetirul tissue and other!humans. 1Thls " :indefinite moratorium " w1as a result of a process that 1 began with research p110posaJs considered rby the National In- 'stituites of Health (NIH) in October 1987. In Marich 1988 a momtorium wa;g plaioed on the r:eseareh, and an 1advisory panel was summoned to consider the ethical issues involved. This panel presented 1a cveoommendation for the procedures. However, the Secretary of the Department of Health and Ruman Se1wfoes (HHS), Dr. Louis Sullivan, decided against the research proposal on etmcal grounds. His decision w:as with the 'concU'l'Tenoe of the Assistant Secretary :£m.· Health of HHS, Dr. James Mason, who has Tespons~bility for the NIH. Secretary SulliV1an's decision was oommumcarted to the Acting Director of the NIH, Dr. William Raub, in Nov,ember 1989. A :firestorm of criticism erupted from,rudv;ocates of this research, including the Council of Judicial and Ethical Affairs of tihe American Medical Association, which 5.n June 1989 called for an end to the:ban.2 In this article, we wish to question both the science and the ethics of the rproposed fotal tissue transplantation therapy. We!Will 1support the £edeml funding moratorium and surggest new pmtections for the fetuses (whether po,ssibly living or de2 " Medical Applications of Fetal Tissue Transplantation", JAMA, Vol. 263, No. 4, January 26, 1990, 'PP· 565-570. There has been a.great deal of public debate, not only in the U.S. but also in Europe over whether human embryo research should be supported with public funds. Many Catholic countries in Europe have prohibited such research, while a number of other nations have allowed it. Dickson, D., "Europe Split on Embyro Research", Science, Vol. 242, November 21, 1988, pp. 1117-1118. The most interesting controversy is in West Germany where there is a strong movement to prohibit it because many there believe such an experimentation requires judgments that there are certain forms of human life that do not deserve to survive. Ibid., p. 1117. Many Germans regard these sorts of judgments as too close to those made by Nazis, and there is strong sentiment to prohibit such research altogether. Ibid. HUMAN FETAL TISSUE TRANSPLANTS 577 oea:sed) of elective a.bortfons. We will also describe new reseaooh directions in t~apy.for the diseases in which it is claimed that fetal... (shrink)

The International Panel on Social Progress is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. The IPSP has produced a report consisting of twenty-two chapters in three volumes that distills the research of these scholars and outlines what the best social science has to say about positive social change. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of (...) world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. The authors offer a cautious optimistic conclusion: multiple ideas for social progress and better policies are already available and deserve to be tested and implemented. (shrink)

En janvier 1783, deux musiciennes, Bianca Sacchetti et Andrianna Ferrarese, s’enfuirent de l’ospedale des Mendicanti, à Venise, pour tenter leur chance sur les scènes de théâtre. Formées dans l’une des quatre institutions vénitiennes destinées à recueillir les orphelins de Venise, elles étaient devenues des musiciennes hors pair, chantaient chaque jour dans la chapelle de l’ospedale et jouaient de plusieurs instruments. Le dossier consacré à leur fugue, qui se trouve toujours à l’Archivio di Stato de Venise, nous donne les circonstances et (...) les raisons de leur fugue, mais fournit également des informations précieuses et uniques sur les aspirations des « filles du choeur » à une vie meilleure. Des documents inédits illustrent les relations d’amitié qui pouvaient exister entre deux jeunes femmes recueillies par charité et suffisamment talentueuses pour avoir réussi à devenir deux des meilleures musiciennes de Venise. Retrouvées par les autorités, elles poursuivirent d’ailleurs une brillante carrière, l’une à l’opéra, l’autre au sein de l’ospedale, la Ferrarese créant même l’un des rôles du Così fan tutte de Mozart. (shrink)

This is the first of three volumes containing a report from the International Panel on Social Progress. The IPSP is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the (...) twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. This particular volume covers topics such as economic inequality and growth, finance and corporations, labor, capitalism, and social justice. (shrink)

This is the third of three volumes containing a report from the International Panel on Social Progress. The IPSP is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the (...) twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. This particular volume covers topics such as world cultures and religions, families, global health, education, and the contributions of social sciences to institutional change. (shrink)

The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Narrar artisticamente o Mistério Santo que habita entre nós: Leitura místico-teológica da obra “Guerra e Paz” de Cândido Portinari. (Narrating artistically the Holy Mystery that lives among us: Mystical-theological reading of the panel "War and Peace"). - DOI: 10.5752/P.2175-5841.2013v11n31p867 A revelação é um conceito fundamental para a teologia cristã: ele se refere à experiência que fundamenta o discurso sobre Deus. No século XX, operou-se uma transformação importante nessa concepção fundamental, uma renovação que implicou na desconstrução do conceito tradicional de (...) revelação focado em doutrinas e dogmas e na emergência de uma nova concepção que coloca como fundamento da revelação a experiência do incondicional, experiência mística. A partir dessa renovação, passou-se a considerar a problemática da dificuldade de uma linguagem que expresse a complexidade dessa experiência paradoxal. Toda criação artística, na medida em que provoca uma forte experiência estética, é uma maneira de falar de revelação. A linguagem da arte com seu poder evocativo e não definível é certamente capaz de expressar essa experiência do divino sem constrangimento do sagrado e sem desvalorização do humano. Esse trabalho consiste em fazer a leitura dos painéis Guerra e Paz de Cândido Portinari, evidenciando que através da arte é possível narrar artisticamente o Mistério Santo que habita entre nós. Palavras-chaves: Mística. Arte. Espiritualidade. Cândido PortinariRevelation is a key concept to Christian theology: it refers to the experience that underlines the discourses about God. In the twentieth century, an important transformation on this concept led to a deconstruction of its traditional meaning, originally focused on doctrines and dogmas, and further to the emergency of a new conception, which places the mystical experience in the very foundation of the Revelation’s concept. Since this renovation, the difficulties of a language to express the complexity of this paradoxical experience were highly problematized. All artistic creation, as long as it provokes a strong aesthetic experience, is matter of Revelation. The Art’s language, with its non-definable and evocative power, is certainly capable of expressing this divine experience without devaluate the holy or the human depreciation. This work consists on the reading of Cândido Portinari’s “War and Peace” panels, pointing out that, through art, it is possible to narrate artistically the Holy Mystery that dwells among us. Keywords: Mystics. Art. Spirituality. Cândido Portinari. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, (...) and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation. (shrink)

In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of Objectivism, calls (...) “bedrock legal authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we investigate (...) recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018). (shrink)

O artigo científico visa esclarecer acerca do judicial review com enfoque no originalismo e no interpretativismo. Neste trabalho pretendemos demonstrar ser o interpretativismo um construto da Suprema Corte dos Estados Unidos oriundo do precedente Brown. Em primeiro lugar, examinaremos os precedentes da Suprema Corte, cujos fundamentos foram obtidos a partir da corrente originalista, até chegarmos ao citado caso Brown e em seguida analisaremos filosoficamente o precedente. Em conclusão, antes se buscava a intenção original do constituinte, no entanto, modernamente, almeja-se (...) controlar a constitucionalidade com parâmetro nos princípios constitucionais. (shrink)

O presente estudo trata-se de uma pesquisa qualitativa com objetivo de analisar as mudanças nas relações familiares provenientes da guarda judicial dos netos, em disputa com seus filhos. Nesse texto, enfatizamse as questões sobre tempo e dinheiro e suas influências sobre essas relações. Para a const..

El reconocimiento constitucional de ciertos derechos colectivos de los pueblos originarios, efectuado en algunas Repúblicas hispanoamericanas que han avanzado en procesos constituyentes hacia un Estado de carácter plurinacional, multiétnico e intercultural, ha conseguido quebrar hasta cierto punto aquella cultura jurídica hegemónica que dominó con su carácter monista durante décadas o, mejor dicho, durante siglos. La legitimación de un derecho consuetudinario indígena, poseedor de una jurisdicción especial y autónoma, esto es, la construcción de un marco dentro del cual estas comunidades tengan (...) «derecho al propio derecho», constituye sin duda un principio importante para romper la persistencia secular de aquella colonialidad jurídica que, primero desde una matriz criolla y después desde una matriz mestiza, negaba toda autonomía judicial a las distintas nacionalidades indígenas. Pero este nuevo horizonte, si bien representa un proyecto eminentemente decolonial en muchos aspectos, no está exento de problemáticas contradicciones. Porque un escenario de radical pluralismo jurídico quebrantaría la posibilidad de establecer un marco común de ciudadanía, y es éste un nudo de conflicto importantísimo. (shrink)

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code which was in force (...) at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality. (shrink)

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system (...) of judicial constitutional review must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of judges. In this context, (...) the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions. (shrink)

Legal Judgment Prediction (LJP) is an essential component of legal assistant systems, which aims to automatically predict judgment results from a given criminal fact description. As a vital subtask of LJP, researchers have paid little attention to the numerical LJP, i.e., the prediction of imprisonment and penalty. Existing methods ignore numerical information in the criminal facts, making their performances far from satisfactory. For instance, the amount of theft varies, as do the prison terms and penalties. The major challenge is how (...) the model can obtain the ability of numerical comparison and magnitude perception, e.g., 400 < 500 < 800, 500 is closer to 400 than to 800. To this end, we propose a judicial knowledge-enhanced magnitude-aware reasoning architecture, called NumLJP, for the numerical LJP task. Specifically, we first implement a contrastive learning-based judicial knowledge selector to distinguish confusing criminal cases efficiently. Unlike previous approaches that employ the law article as external knowledge, judicial knowledge is a quantitative guideline in real scenarios. It contains many numerals (called anchors) that can construct a reference frame. Then we design a masked numeral prediction task to help the model remember these anchors to acquire legal numerical commonsense from the selected judicial knowledge. We construct a scale-based numerical graph using the anchors and numerals in facts to perform magnitude-aware numerical reasoning. Finally, the representations of fact description, judicial knowledge, and numerals are fused to make decisions. We conduct extensive experiments on three real-world datasets and select several competitive baselines. The results demonstrate that the macro-F1 of NumLJP improves by at least 9.53% and 11.57% on the prediction of penalty and imprisonment, respectively. (shrink)

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah G l as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran Hirschl (...) turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the 'Atat rk card' and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down. (shrink)

Jurisdicción; del latín iurisdictio, iuris: jus y dictio:. En la Roma clásica, para la época de la orden judicial privada, la jurisdicción fue privada, ejercida por árbitros; desde la Roma postclásica, época del conocimiento extraordinario, ha sido pública, con resurgimiento de la jurisdicción privada en la figura del arbitraje.

Interrogations and elections were two branches of Arabic judicial astrology made available in Latin translation to readers in western Europe from the twelfth century. Through an analysis of the theory and practice of interrogations and elections, including the writing of the Jewish astrologer Sahl b. Bishr, this essay considers the extent to which judicial astrology was practiced in the medieval west. Consideration is given to historical examples of interrogations and elections mostly from late medieval English manuscripts. These include (...) the work of John Dunstaple , the musician and astrologer who is known have served at the court of John, duke of Bedford. On the basis of the relatively small number of surviving historical horoscopes, it is argued that the practice of interrogations and elections lagged behind the theory. (shrink)

We examine the relationship between scientific knowledge and the legal system with a focus on the exclusion of expert testimony from trial as ruled by the Daubert standard in the US.We introduce a simple framework to understand and assess the role of judges as “gatekeepers”, monitoring the admission of science in the courtroom. We show how judges face a crucial choice, namely, whether to limit Daubert assessment to the abstract reliability of the methods used by the expert witness or also (...) to check whether the application of those methods was correct. Undesirable outcomes result from both choices, thereby giving rise to the “gatekeeper’s dilemma.” We illustrate the dilemma by analyzing in some detail two well-known cases of Daubert challenges to economic experts. Finally, we present reasons for the absence of straightforward solutions to the dilemma and for its likely endurance. (shrink)

En este trabajo se explora el rol que la verdad de los enunciados fácticos juega en la aplicación de normas jurídicas y en la justificación de las decisiones judiciales. Se sostiene que la verdad es irrelevante respecto de la aplicación de normas jurídicas, entendida esta última en términos «inferenciales», y que lo es también respecto de la justificación interna de las decisiones que aplican esas normas. Se argumenta luego que la verdad de la premisa fáctica tampoco es condición necesaria de (...) la justificación externa, en diferentes sentidos. Se sostiene, en definitiva, que la verdad de la premisa fáctica no es condición necesaria de la justificación de la decisión judicial en ningún sentido plausible en que dicha justificación pueda ser evaluada. Esto no significa, sin embargo, que la verdad de dicha premisa sea irrelevante. (shrink)

Artificial Intelligence (AI) is set to bring changes to legal systems. These technologies may have positive practical implications when it comes to access, efficiency, and accuracy in Justice. However, there are still many uncertainties and challenges associated with the implementation of AI in the legal space. In this research, we surveyed Judges on critical challenges related to the Judging Profession in the AI paradigm; Automated Adjudication; and Legal Principles. Our results suggest that (i) Judges are hesitant about changes in their (...) profession. They signal the need for adequate training that fosters legal literacy in AI, but are less open to changes in legal writing or their social and institutional role; (ii) Judges believe higher levels of automation only lead to fair outcomes if used in earlier phases of adjudication; (iii) Judges believe and are concerned about AI leading to Techno-Legal Positivism; and (iv) Judges consider that Legal AI technologies may have a positive impact in some legal principles, as long as everyone has equal access to those technologies and cybersecurity and judge on the loop safeguards are in place; and (v) Judges are strongly concerned about the de-humanization of Justice. They consider that assessing evidence, analyzing arguments, and deciding on a legal case should be inherently human. By surveying these practitioners, we aim to foster a responsible, inclusive, and transparent innovation in Justice. (shrink)

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal (...) inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter (...) applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

In my article, I want to focus on the critique Cristina Lafont makes to expertocracy and epistocracy, mainly through the institution of judicial review, to which she dedicates chapter 7 and part of...

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the (...) administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts (...) do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

In a recent line of cases, senior judges in the UK have been called upon to adjudicate in complaints over the failure of health and local authorities to meet the welfare needs of citizens. Local authorities claimed that the disputes had been precipitated by a lack of resources allocated by central government to meet local demand. This article examines the role of the courts in resolving a fundamental tension between central government policy of financial cost-cutting on the one hand and (...) welfarist principles embodied in legislation for the delivery of public services on the other. Questions are raised about the relevance and appropriateness of rights-based adjudication in welfare needs contexts and about the reluctance of courts to intervene in the resolution of resource allocation disputes even where fundamental rights, particularly in areas such as health, community care, and education where notions of rights are inextricably bound up with use of financial resources. These key cases have arisen prior to the implementation of the Human Rights Act 1998. Where relevant, the likely impact of the Act on welfare needs disputes is considered. (shrink)