Using mobile health research as an extended example, this article provides an overview of when the Common Rule “applies” to a variety of activities, what might be meant when one says that the Common Rule does or does not “apply,” the extent to which these different meanings of “apply” matter, and, when the Common Rule does apply, how it applies.

Drawing on classic and contemporary scholarship and empirical analysis of elections and public expenditures in 80 countries, the author argues for the existence of primary and secondary laws of politics. Starting with how basic elements of politics-leadership, organization, ideology, resources, and force-coalesce in the formation of states, he proceeds to examine the operations of those laws in democracies and dictatorships. Primary laws constrain the support that incumbents draw from the electorate, limiting their time in office. They operate (...) unimpeded in democracies. Secondary laws describe the general tendency of the state to expand vis-à-vis economy and society. They exert their greatest force in one-party states imbued with a totalitarian ideology. The author establishes the primary laws in a rigorous analysis of 1,100 parliamentary and presidential elections in 80 countries, plus another 1,000 U.S. gubernatorial elections. Evidence for the secondary laws is drawn from public expenditure data series, with findings presented in easily grasped tables and graphs. Having established these laws quantitatively, the author uses Cuba as a case study, adding qualitative analysis and a practical application to propose a constitutional framework for a future Cuban democracy. Written in an engaging, jargon-free style, this enlightening book will be of great interest to students and scholars in political science, especially those specializing in comparative politics, as well as opinion leaders and engaged citizens. (shrink)

The essay replies to comments by Finnis, Gardner and Endicott, on my book, Law as a Moral Idea. It is questioned whether Finnis is right to suggest that governance by law is a requirement of justice. It is suggested that Hart's positivism may have rested upon an unduly private conception of morality. Gardner's suggestion that Law as a Moral Idea falsely manufactures disagreement with Hart is rejected, principally by pointing out that Gardner focuses upon only one issue, where the book (...) already acknowledges that Hart might conceivably agree, and ignores other issues where the disagreement with Hart seems indisputable. In response to Endicott, it is acknowledged that 'politics' could be understood as a moral idea comparable to the idea of 'law', but denied that this robs either thesis of interest. The nature of doctrinal reasoning and law's justificatory force is then discussed. (shrink)

Jewish law has a history stretching from the early period to the modern State of Israel, encompassing the Talmud, Geonic and later codifications, the Spanish Golden Age, medieval and modern responsa, the Holocaust and modern reforms. Fifteen distinct periods are separately studied in this volume, each one by a leading specialist, and the emphasis throughout is on the development of the institutions and sources of the law.

Incisively and stylishly written, this book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society.

To understand the distinctive characteristics of the institutions of law, one needs to understand the idea of law. Understanding the nature of law is not ultimately a matter of achieving a careful description of social practices but a matter of grasping the idea towards which those practices must be understood as oriented. The idea of law is the focal point that enables us to make coherent sense of the otherwise diverse features of practice, but it is not itself a matter (...) of observable practice. It resembles a notional point in space that enables us to grasp the relationship between various parts of a complex drawing, although in itself it forms no part of the drawing. But how is such an idea to be investigated? We expect a clear understanding of the idea of law to explain our settled understandings about what will and will not count as an instance of legal ordering. We expect it, in other words, to explain some at least of the minimum conditions for applicability of the idea. But, since the idea of law is invoked within the practices of law, we also expect a philosophical understanding of that idea to clarify its role in guiding and orienting practice, and not simply in describing practice. Although the practices of law are oriented towards the idea of law, that idea is not straightforwardly available to be read in the surface appearance of the practices. For such practices, while involving systematic appeal to the idea of law, operate for the most part on the basis of that unreflective conformity that assists the stable functioning of most human institutions. Can we begin by identifying a "minimum specification" of the concept of law, in the form of a set of conditions without which nothing could count as law at all? From such a minimum specification, can we proceed in some orderly and intellectually defensible way towards "later phases" of the concept, with their "qualitative changes as well as additions and complications"? The possibility is worth exploring, however unfashionable may be the philosophical viewpoint from which it springs. Fuller's famous story of Rex, and his failed attempts to enact law, identifies the minimum conditions that something must satisfy in order to count as an instance of law. Fuller's theory becomes interesting when he proceeds to demonstrate that the eight desiderata (identified as minimum conditions), when taken collectively, be regarded as a guiding ideal for legal thought: the ideal that we usually label "the rule of law". Fuller claimed that his eight requirements represent an "inner morality of law". Hart's critique of Fuller appeared to suggest that the moral value of compliance with the eight requirements is wholly contingent upon the law's content, and that the eight requirements are more akin to precepts of efficiency than to moral standards. This criticism has been widely endorsed as correct. In fact, the criticism is not correct. The eight requirements are not principles of efficacy, but (when taken together) represent a moral ideal for legal systems. Fuller never really succeeded in giving a clear explanation of the moral status of his eight requirements. I argue that Fuller's eight desiderata represent an intrinsically moral ideal that we may call "freedom as independence from the power of another". This is the aspect of freedom that distinguishes the slave from the free man. My theory seeks to establish the existence of a very tight and necessary connection between law and morality. Positivists will find it impossible to deny that governance by law involves some degree of compliance with Fuller's eight requirements, and that such compliance necessarily involves the realisation of some degree of freedom as independence. If they are tempted to deny that freedom as independence is a distinct aspect of freedom, they must also argue that connections between slavery and the lack of freedom are purely contingent. If they accept that the lack of freedom as independece is what makes a slave a slave, but they deny that freedom as indepenence is a moral value, they must say that there is nothing intrinsically morally wrong with slavery: the moral wrongness of slavery would then have to be seen as stemming from purely contingent features of the slave's position. The value of freedom as independence may be thin. But it is real, it is genuinely valuable, and it is tightly connected to the existence of law. (shrink)

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake -- Mistake of (...) law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

This chapter contains sections titled: Problems of Jurisprudence The Enterprise of Legal Theory From Positivism to Natural Law Theory as Interpretation Law as Integrity Unger and the Critical Legal Studies Movement Philosophical Reconstruction of Legal Doctrine.

The paradox which characterizes the modern states system is that the dual structure of sovereignty and justice through which the system was originally conceived is no more, yet the system is still with us. Justice was redefined in the 19th century as a mere derivation of state sovereignty, a process reducing the focus of the system to sovereignty alone and thus dispossessing the system of a principle to mediate between the sovereign will and the international community. It is argued in (...) this essay that the lack of a mediating principle may signify violence as inherent in the system, subsequently making intervention and terrorism facets of the established order rather than anomalies. Relying greatly on recent critical international legal studies, the article asks if the strategies suggested by lawyers such as Anthony D'Amato and Rosalyn Higgins to cope with the paradox, coupled with the contemporary universal human rights arguments, signal a move towards restoring the historical focus of the system. (shrink)

Recent work in artificial intelligence has increasingly turned to argumentation as a rich, interdisciplinary area of research that can provide new methods related to evidence and reasoning in the area of law. Douglas Walton provides an introduction to basic concepts, tools and methods in argumentation theory and artificial intelligence as applied to the analysis and evaluation of witness testimony. He shows how witness testimony is by its nature inherently fallible and sometimes subject to disastrous failures. At the same time such (...) testimony can provide evidence that is not only necessary but inherently reasonable for logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the traditional disdain for witness testimony as a type of evidence shown by logical positivists, and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way that yields a rational decision-making process. (shrink)

Debate over the nature of science has recently moved from the halls of academia into the public sphere, where it has taken shape as the "science wars." At issue is the question of whether scientific knowledge is objective and universal or socially mediated, whether scientific truths are independent of human values and beliefs. Ronald Giere is a philosopher of science who has been at the forefront of this debate from its inception, and Science without Laws offers a much-needed mediating (...) perspective on an increasingly volatile line of inquiry. Giere does not question the major findings of modern science: for example, that the universe is expanding or that inheritance is carried by DNA molecules with a double helical structure. But like many critics of modern science, he rejects the widespread notion of science--deriving ultimately from the Enlightenment--as a uniquely rational activity leading to the discovery of universal truths underlying all natural phenomena. In these highly readable essays, Giere argues that it is better to understand scientists as merely constructing more or less abstract models of limited aspects of the world. Such an understanding makes possible a resolution of the issues at stake in the science wars. The critics of science are seen to be correct in rejecting the Enlightenment idea of science, and its defenders are seen to be correct in insisting that science does produce genuine knowledge of the natural world. Giere is utterly persuasive in arguing that to criticize the Enlightenment ideal is not to criticize science itself, and that to defend science one need not defend the Enlightenment ideal. Science without Laws thus stakes out a middle ground in these debates by showing us how science can be better conceived in other ways. (shrink)

Physicists regularly invoke universal laws, such as those of motion and electromagnetism, to explain events. Biological and medical scientists have no such laws. How then do they acquire a reliable body of knowledge about biological organisms and human disease? One way is by repeatedly returning to, manipulating, observing, interpreting, and reinterpreting certain subjects—such as flies, mice, worms, or microbes—or, as they are known in biology, “model systems.” Across the natural and social sciences, other disciplinary fields have developed canonical (...) examples that have played a role comparable to that of biology’s model systems, serving not only as points of reference and illustrations of general principles or values but also as sites of continued investigation and reinterpretation. The essays in this collection assess the scope and function of model objects in domains as diverse as biology, geology, and history, attending to differences between fields as well as to epistemological commonalities. Contributors examine the role of the fruit fly Drosophila and nematode worms in biology, troops of baboons in primatology, box and digital simulations of the movement of the earth’s crust in geology, and meteorological models in climatology. They analyze the intensive study of the prisoner’s dilemma in game theory, ritual in anthropology, the individual case in psychoanalytic research, and Athenian democracy in political theory. The contributors illuminate the processes through which particular organisms, cases, materials, or narratives become foundational to their fields, and they examine how these foundational exemplars—from the fruit fly to Freud’s Dora—shape the knowledge produced within their disciplines. Contributors Rachel A. Ankeny Angela N. H. Creager Amy Dahan Dalmedico John Forrester Clifford Geertz Carlo Ginzburg E. Jane Albert Hubbard Elizabeth Lunbeck Mary S. Morgan Josiah Ober Naomi Oreskes Susan Sperling Marcel Weber M. Norton Wise. (shrink)

‘As regards the exegetai three let the four tribes nominate four each from their own personnel, and let them scrutinize whichever three gain most votes and send nine to Delphi to appoint one from each group of three; the scrutiny and the age-qualification shall be the same for them as for the priests. Let these be exegetai for life; as regards a vacancy let the preliminary election be made by the four tribes in which the vacancy may occur.’.

Şiddet varoluşumuzun temelini oluşturan en önemli niteliklerdendir. Fransız düşünce tarihinde önemli bir yer tutan Walter Benjamin’in tarih kavramı üzerinden ele aldığı şiddet insanın doğal yaşamdan yerleşik yaşama, hukukun egemenliği altına girmesini temellendirmektedir. Ancak yasa, aynı zamanda egemenin tasavvurundadır. Bu nedenle zamanla yozlaşmaya açıktır. Benjamin bu yozlaşmanın bir karşı çıkışla, Mesiyanik bir şiddetle sona ereceğini ifade etmektedir. Hukuksal şiddet insanları tek tip kılarken, Mesiyanik şiddet daha kişisel bir formdadır. Benjamin’e göre burada yasa koyucu ve yasa koruyucu şiddetin uygulandığı insan kırılma anlarında (...) kendini bulmaktadır. Bu ifadeden yola çıkarak metinde Benjamin’in tarihin yıkıntıları arasında koşturduğunu söylediği çocuğa istinaden çocuksu bir şiddet formunu oluşturmak ve bunu temellendirmek metnin esas amacıdır. Bu çocuksu biçim, içkin şiddet olarak kavramsallaştırılmakta ve kişinin sorgulama ve itirazla kendi benliğini oluşturmasını temellendirmektedir. Böyle bir insan zaman ve mekanda kesinti yaratarak, toplumda kendini ortaya koyduğu yeni bir alan açmaktadır. Çocuksu içkin şiddet anın durduğu, zamanın askıya alındığı ve yasanın içinde bir gedik açılan ana denk gelmektedir. Bu fotoğrafla benzer bir etkiye sahiptir. Fotoğraf sanatı toplum ve yasanın içinde ve dışında, görülen ve görülmeyenin arasında bir yerdedir. Çocuksu içkin şiddeti uygulayan insan da diğerlerine göre barbar ve yabancı hale gelerek ne içeride ne dışarıda bulunmaktadır. Kısaca bütün akışı askıya almaktadır. Metinde bu durumu örneklemek için Ori Gerscht’in yıkımı konu alan fotoğrafları kullanılacaktır. (shrink)

The paper deals with the notion of guilt according to Heidegger’s philosophy and its repercussions for the understanding of guilt according to criminal law doctrine and theory. Heidegger’s notion on guilt is tantamount to Dasein’s incapacity to exhaust all its existential possibilities, whereas legal guilt has to do only with man’s legal indebtedness, which is an aspect of inauthenticity, a deficient mode of ontological responsibility. This does not mean, though, sheer amoralism or apologetics to violence. In late Heidegger one may (...) discern traces of an ontological ethics, which refers to Dasein’s attunement to Being and especially to the sparing and healing of the Fourfold as these are coming to presence through poetic dwelling; through, that is, an authentic contact with the Uncanny, meaning a radical exposure to Being’s enigmatic hiddenness, the endurance in front of the abyss of Nothingness. In this framework there remains no space for assuming any moral-juridical responsibility, because Dasein is predestined to err constantly due to the ruptures and turnings of Being’s history. Legal blameworthiness is thus obsolete because, injustice being according to Heidegger the dis-jointure of Being’s order, there is ontologically no imputable ‘legal’ crime; there is only Dasein’s eventful projecting-opening within errancy. Whether though this notion of ‘Being’ is a new ‘arche’ to be superseded emerges then as the crucial question. To regain any non-metaphysical notion of guilt is after Heidegger only possible through a theoretical move which cannot ignore his legacy but also has to go beyond the Master. (shrink)

This second edition has been revised to provide additional coherence to the themes examined and introduces sections on topical issues, for example the chapter on Utilitarianism now includes a discussion on law and economics.