Since the publication of Ekins’ The Nature of Legislative Intent, significant attention has been paid to common attitude models of legislative intention, that is, models that require unanimity among its group members. A common interpretation of Ekins is that these common attitudes are to be preferred over aggregated attitudes. I argue that any feasible theory of legislative attitudes will require non-trivial aggregation (ie. not based on unanimity rules alone). Two arguments are put forward in this regard: first, that non-trivial aggregation (...) better explains uncooperative legislative behaviour and second, that mathematical problems with aggregation apply to common attitudes as well since they involve trivial aggregation. These arguments generalise to theories of common attitudes other than Ekins’. (shrink)

This article proposes an innovative methodology for enhancing the technical validation, legal alignment and interdisciplinarity of attempts to encode legislation. In the context of an experiment that examines how different legally trained participants convert select provisions of the Australian Copyright Act 1968 (Cth) into machine-executable code, we find that a combination of manual and automated methods for coding validation, which focus on formal adherence to programming languages and conventions, can significantly increase the similarity of encoded rules between coders. Participants nonetheless (...) encountered various interpretive difficulties, including syntactic ambiguity, and intra- and intertextuality, which necessitated legal evaluation, as distinct from and in addition to coding validation. Many of these difficulties can be resolved through what we call a process of ‘legal alignment’ that aims to enhance the congruence between encoded provisions and the true meaning of a statute as determined by the courts. However, some difficulties cannot be overcome in advance, such as factual indeterminacy. Given the inherently interdisciplinary nature of encoding legislation, we argue that it is desirable for ‘rules as code’ (‘RaC’) initiatives to have, at a minimum, legal subject matter, statutory interpretation and technical programming expertise. Overall, we contend that technical validation, legal alignment and interdisciplinary teamwork are integral to the success of attempts to encode legislation. While legal alignment processes will vary depending on jurisdictionally-specific principles and practices of statutory interpretation, the technical and interdisciplinary components of our methodology are transferable across regulatory contexts, bodies of law and Commonwealth and other jurisdictions. (shrink)

Educational Legislation and Administration of the Colonial Governments is an unchanged, high-quality reprint of the original edition of 1899. Hansebooks is editor of the literature on different topic areas such as research and science, travel and expeditions, cooking and nutrition, medicine, and other genres. As a publisher we focus on the preservation of historical literature. Many works of historical writers and scientists are available today as antiques only. Hansebooks newly publishes these books and contributes to the preservation of literature which (...) has become rare and historical knowledge for the future. (shrink)

Legislated Rights: Securing Human Rights through Legislation aims to correct certain imbalances in constitutional thought and scholarship that burden the legislature and rights with misconceptions...

Biobanks are important resources for improving public health and individual care. Some legal frameworks can be more or less conducive to advancing the potential benefits of biobanks. The purpose of this article is to assess biobanking legislation and practices in Spain to determine how well they fare in such a regard. We focus here on some of the primary ethical values that ground relevant legislation and that we believe are consistent with promoting biobanking benefits: the value of scientific research; efficient (...) use of scarce resources; and respect for the dignity of donors. We argue that although Spanish regulations advance these values in important ways, they also have provisions that undermine them and thus risk limiting the potential benefits of biobanks. We offer some suggestions for improvement. (shrink)

This paper explores legislative provision and pre-school education policy in England over the course of the twentieth century. The paper argues that there has been a significant ideational shift over this period, from a policy focus on nursery education for poor children to universal early childhood education. Not only have ideas changed but provision and funding have changed. Although there have been major revisions to legislative provision, there are elements of continuity as regards the institutions delivering early childhood education, particularly (...) maintained nursery schools and nursery classes, but with layering of private-for-profit and not-for-profit institutions to ‘fill the gap’ in provision. At the same time, the central state has taken increasing control of publicly funded early childhood education through legislative provision. (shrink)

This paper explores the financial reporting scandals of the past decade and the resulting U.S. legislative attempts to impose ethical behavior and control the incidence of new reporting problems via the Sarbanes-Oxley legislation. We begin with a brief historical perspective followed by assertions of ethical consequences of legislation with discussions of key recent corporate scandals, the motives for the frauds, and the consequences. Ethics related provisions of the Sarbanes-Oxley Act are discussed with the potential impact of the legislation on the (...) likelihood of similar future frauds and accompanying prognosis for future corporate ethical behavior. (shrink)

Legislative scholars have debated what factors (e.g. divided government) account for the number of important laws a legislative body passes per year. This paper presents a monopoly model for explaining legislative production. It assumes that a legislature adjusts its law production so as to maximize its utility. The model predicts that socio-economic and political changes increase the marginal benefit of law production, whereas low negotiation costs and ample legislative resources decrease the marginal cost of law production. The model is tested (...) in two ways. The first approach compares the legislatures of 42 developed and developing countries. The second analyzes Japanese lawmaking from 1949 to 1990, using an appropriate method for event count time series data. Both empirical investigations support the model's predictions for legislative production. (shrink)

This review essay examines the contribution of Legislated Rights (Webber et al, Cambridge 2018) to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and the judiciary with respect to the task of giving effect to constitutional rights is best understood and conceived. In doing so, the essay situates the work within contemporary scholarship and adopts a broadly comparative lens — a perspective that is mindful of key developments in constitutional law and theory (...) over the past several decades. Ultimately, it is suggested that a critical weakness of the capacity of Legislated Rights to contribute to contemporary debates about judicial review is its lack of engagement with these developments. As a result, the work’s intervention largely misses its mark. It speaks to an outdated view that does not reflect contemporary constitutional practice or scholarship. (shrink)

Recently, new developments took place in the Dutch debate on the legislation of euthanasia. After a brief account of that debate, the article discusses a new government proposal for legislation in this field, which was submitted to the Dutch parliament in November 1991. This proposal relates not only to euthanasia but also to some other medical decisions concerning the end of life. The author concludes that, for several reasons, it is unsatisfactory.

According to the Standard Picture of how law works, the content of the law that is created by legal texts such as statutes and constitutional provisions is determined by the meaning of these texts. Most proponents of this picture claim more specifically that the relevant notion of meaning in play is the communicative content of legal texts and that communicative content is itself determined by considerations of the intentions of legal authorities. In recent years, the Standard Picture has become the (...) subject of heated philosophical debate. Focusing on statutes as the paradigmatic type of legal texts, this thesis aims to contribute to this debate in two central ways. First, it argues that the aforementioned ‘intention-based’ versions of the Standard Picture lack convincing responses to three important objections that have been raised by critics. First, they lack an adequate account of how legislative bodies can be reasonably ascribed the intentions that they would need according to such versions. Second, they fail to explain important aspects of legal practice. Third, they provide at best a parochial theory of the content of the law that is generated by statutes. The second contribution is to provide a more sustained defence of the Standard Picture by developing a new ‘commitment-based’ version of this view. This version is based on an alternative theory of communication and claims that communicative content is not determined by considerations of intentions but rather by the commitments that are incurred by means of communicative acts. It is argued that this version can deal with the objections that have been raised by critics and therefore provides a more robust version of the Standard Picture. (shrink)

With a new foreword by Paul Kelly 'I regard Hayek's work as a new opening of the most fundamental debate in the field of political philosophy' - Sir Karl Popper 'This promises to be the crowning work of a scholar who has devoted a lifetime to thinking about society and its values. The entire work must surely amount to an immense contribution to social and legal philosophy' - Philosophical Studies Law, Legislation and Liberty is Hayek's major statement of political philosophy (...) and one of the most ambitious yet subtle defences of a free market society ever written. A robust defence of individual liberty, it is also crucial for understanding Hayek's influential views concerning the role of the state: far from being an innocent bystander, he argues that the state has an important role to play in defending the norms and practices of an ordered and free society. His arguments had a profound influence on the policies of Thatcher in the 1980s and resonate today in visions of the 'Big Society'. First published in three separate volumes, this Routledge Classics edition makes one of his most important books available in a single volume. Essential reading for understanding the background to the recent world economic turmoil and financial crisis, it also foreshadows the subsequent heated debate about regulation and political governance if such disasters are to be avoided in the future. (shrink)

This study focuses on discussing the choices of lessee in Jordan legislation because of a Defense Order in Curfew to face Corona Virus Disease 2019 and the impact of Corona virus disease 2019 on the lessor obligation. The study finds out that the lessee has two options: to cancel the contract regarding force majeure or refuge to court and to reduce the fare amount regarding exceptional circumstances. The study also recommended issuing a Defense Order specifying the exact percentage to be (...) reduced. In the absence of a Defense Order, the study of a friendly agreement should be recommended between the lessor and the tenant on the reduced percentage. (shrink)

Breaking with discriminatory views and segregated education for children with disabilities, regions often referred to as Confucian Heritage Regions (CHRs) have been moving towards inclusive education. Although some of these regions have been at the centre of attention in global education recently, there is a lack of research and information about how they ‘do’ inclusive education. Considering that reinforcing legislative foundations is of foremost importance for its fulfillment, this study examines legislation on the education of children with disabilities in four (...) neighbouring CHRs: the Chinese Mainland, Japan, South Korea and China's Taiwan. The core principles that frame such legislation were analyzed and cross-compared. The findings show that despite the common Confucian heritage that is attributed to them systematically in studies of inclusive education – which is often said to influence the way disability is perceived and dealt with – the four Regions treat inclusion differently in terms of legislation. While some CHRs are clearly influenced by e.g. the USA, others are trying to design a specific perspective on inclusive education. The authors argue that the complex example of these CHRs can serve as an important template for studies on both inclusive and comparative education. The article also calls for the careful treatment of inclusive education beyond an essentialist and somewhat simplistic perspective that could reduce certain regions to a monolith. (shrink)

An empirical exploration of the effects on legislative structure, distribution of influence, power, and decision outcomes, of recent changes in the Congress and state legislatures. The book focuses on changes in rules, parties, and committees and the impact or lack of impact of these changes on subsequent activity. Originally published in 1978 by D.C. Heath and Company. Co-published with the Policy Studies Organization.

The objective of this text is to show how the figure of the Legislator presented by Rousseau is essential for carrying out the transition movement from the abstract to the concrete in the Social Contract. The occurrence of such a movement is noticeable in different parts of the work, but our focus is to address it right at the beginning, starting from book two. To this end, we deal with the chapters concerning the Legislator, the people and the various systems (...) of legislation: in the chapter on the Legislator, we understand the need for such an individual in Rousseau's theory, as well as his centrality for the consolidation of a legitimate society, such as the principles of political law prescribe; the chapters referring to the people and the different systems of legislation, in turn, allowed us to reflect on the historical circumstances of the people, which must be taken into account by the Legislator, so that he can propose adequate legislation for the people to whom it is intended. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject who is granted (...) such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

In the last years of his life, Gerald C. MacCallum, Jr., defied illness to continue his work on the philosophy of law. This book is a monument to MacCallum’s effort, containing fourteen of his essays, five of them published here for the first time. Two of those previously published are widely admired and reprinted: “Legislative Intent,” certainly one of the best papers ever published on its topic, and “Negative and Positive Freedom,” which offered a new way of looking at a (...) distinction that had been canonical for the last two centuries. To complete MacCallum’s unfinished pieces, Marcus G. Singer and Rex Martin painstakingly consulted MacCallum’s notes for planned revisions. MacCallum discusses legal reasoning, the application of rules, the interpretation of statutes and constitutional provisions, and the relation of these matters to morality and justice. In the last decade of his working life, he became greatly concerned with the interrelated themes of integrity, autonomy, conscience, and violence. He wished to relate competition to morality and justice to adversarial systems of law. These themes are woven together in Legislative Intent and constitute the main subject of some of the essays. MacCallum was engaged in a constant search for truth and understanding, and in his life and work lived up to Emerson’s vision of the “American Scholar” as a “human being thinking.” These essays are informed by the author’s deep curiosity, penetrating intelligence, wide knowledge, and outstanding character. They will be treasured wherever these characteristics and true philosophy are treasured. (shrink)

It is a widely supported claim that liberal democratic institutions should treat citizens with equal respect. I neither dispute nor champion this claim, but investigate how it could be fulfilled. I do this by asking, as a sort of litmus test, how liberal democratic institutions should treat with respect citizens holding minority convictions, and thereby dissenting from a deliberative output. The first step of my argument consists in clarifying the sense in which liberal democracies have a primary concern for the (...) respectful treatment of citizens qua self-legislating persons. Taking the second step, I address critically the common tendency in the literature to concentrate on what I have termed the ex ante legem phase, focusing solely on the structure of institutionalized decision-making processes. I submit, rather, that the principle of equal respect for persons demands more of liberal democratic institutions to enhance citizens' chances to give voice to their consciences and influence, on that ground, the formulation of the rules to which they should conform. Fulfilling this commitment requires democratic theorizing to go beyond the ex ante legem phase and regard forms of ex post legem contestation as an extension of citizens' right to political participation. Against this backdrop, I take the third and last step and argue that a promising way forward consists in the adoption of an ex post legem version of conscientious exemptionism, granting citizens a conditional moral right to request exemptions on the grounds of conscience from certain controversial legal and political provisions. (shrink)

The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' to 'interpreters' with the transition from modernity to post-modernity. The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' (...) to 'interpreters' with the transition from modernity to post-modernity. (shrink)

Excerpt from Traites de Legislation Civile Et PenaleMais ce n'est pas un panegyrique que je fais. Il faut bien avouer que le soin d'arranger et de polir a peu d' attraits pour le genie de l'auteur. Tant qu'il est pousse par une force creatrice, il ne sent que le plaisir de la composition. S'agit-il de donner des formes, de rediger, de finir, il n'en sent plus que la fatigue. Que l'ouvrage soit interrompu, le mal est irreparable: le charme disparait, le (...) degout succede, et la passion eteinte ne se rallume que pour un objet nouveau.La meme disposition l'a eloigne de contribuer a la redaction que je donne au public; je n'ai pu Obtenir que rarement les eclaircissements et les secours dont j'avais besoin il lui en coutait tr0p de suspendre le cours actuel de ses idees pour revenir sur d'anciennes traces.About the PublisherForgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.comThis book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works. (shrink)

Battles against domestic violence in the People’s Republic of China have been carried out since 1995. In this study, legislative progression of laws related to domestic violence is first examined and clarified; second, findings from the legislative review are investigated on the basis of civil and criminal cases; third, the interaction among social and traditional norms, legislation, and judicial outcomes is explored and interpreted from a sociosemiotic perspective. It is found in this study that: 1) legislation and judicial practices of (...) domestic violence in the P. R. C. are closely intertwined with social and traditional norms; 2) there is a gap between judicial practices dealing with domestic violence and the legislation; 3) the Anti-Domestic Violence Law offers a notch for state powers to embrace the familial relationship and to safeguard a victim. (shrink)

This chapter contains section titled: Images of Legislation Legislation in Legal Theory Analytics of the Legislative Process Interpreting and Applying Legislation A Forum of Principle? References.

There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention (...) of the legislature—roughly, what the legislature intended to imply. The purpose of this article is to present some new reasons to doubt linguistic intentionalism and to offer an alternative for a particular kind of implied statutory meaning that some philosophers of language call implicitures. Rather than legislative intention, the meaning of implicitures is metaphysically determined by intention-free pragmatic linguistic norms, the grasp of which is part of the language competence of ordinary law subjects. The use of these norms, in combination with certain facts about background social practices and other conventions, generates implicitures that may be inconsistent with actual communicative intentions. These intention-free pragmatic norms, and the implicitures they generate, are explanatorily prior to the fact—if there is such a fact—of what impliciture it is reasonable to infer that the enacting legislature (or the legislators collectively) intended. Reference to legislative linguistic intention (actual or reasonably imputed) is thus explanatorily inert. (shrink)

No enquiry into the making of the modern European state can ignore the part played by law. This comprehensive scholarly volume examines in detail how states availed themselves of juridicial techniques in order to mould their institutions, to take control over their territory, and to exercise power over their subjects. The contributors are leading scholars in the field, who explore the administration of justice and the promulgation of legislation across Europe over a period of several centuries, in order to uncover (...) the role of the law in the birth and development of the European state. The Origins of the Modern State in Europe series arises from an important international research programme sponsored by the European Science foundation. the aim of the series, which comprises seven volumes, is to bring together specialists from different countries, who reinterpret from a comparative European perspective different aspects of the formation of the state over the long period from the beginning of the thirteenth to the end of the eighteenth century. One of the main achievments of the research programme has been to overcome the long-established historiographical tendency to regard states mainly from the viewpoint of their twentieth-century borders. (shrink)

Nonhuman animal studies scholars have extensively investigated attitudes on animal welfare in general and farm animal welfare in particular. Thus far, this research has focused mainly on public opinion, but there has been minimal research seeking to explain the influences on actual policymakers when they vote on farm animal welfare legislation. This paper contributes to this literature by quantitatively analyzing 216 state legislators’ votes on two farm animal welfare bills. It hypothesizes that the representatives’ personal and representational connections with agriculture (...) best explain their votes on these farm animal protection bills. This research also includes three control variables: each legislator’s gender, race/ethnicity, and political party. Logistic regression revealed that the legislators’ personal and representational connections with agriculture are significant, but political party is the strongest independent variable explaining state legislators’ farm animal welfare votes. An interaction model revealed mixed evidence that political party moderates the influence of agriculture. (shrink)

A comprehensive account of English legal thought in the age of Blackstone and Bentham for nearly a century, The Province of Legislation Determined advances an ambitious reinterpretation of eighteenth-century attitudes to social change and law reform. Professor Lieberman's bold synthesis rests on a wide survey of legal materials and on a detailed discussion of Blackstone's Commentaries, the jurisprudence of Lord Kames and the Scottish Enlightenment, the chief justiceship of Lord Mansfield, the penal theories of Eden and Romilly, and the legislative (...) science of Jeremy Bentham. The study relates legal developments to the broader fabric of eighteenth-century social and political theory, and offers a novel assessment of the character of the common law tradition and of Bentham's contribution to the ideology of reform. (shrink)

Purpose of this article is to tell foreign readers about novels made in Russian intellectual property law in 2014. As is known modern Russian revolution in the field of intellectual property legislation occurred January 1, 2008 when Russian intellectual property legislation was codified, included in the text of part fourth of the Civil Code of the Russian Federation. Part fourth of the Russian CC entered into force on January 1, 2008. At the same day seven sectoral intellectual property laws were (...) repealed. Second Revolution in this field took place during 2014: Federal law №35-FZ, 2014, substantially amending the Fourth part on the CC, entered into force on October the 1st of 2014. Scientific aim: The essence and evaluation of these amendments is the subject matter of this paper. Methods: The research is based on the analysis of the new amendments and articles added to the part fourth of the CC. Findings: Codification of the sectoral legislation en bloc in CC is a unique phenomenon. The author believes that such a construction of intellectual property law was made correctly and at the proper time. Factually the Federal Law №35-FZ is the eleventh law amending the text of the part fourth of the CC. But all previous amendments were small and not substantial. As far as amendments introduced by the law №35-FZ are concerned, they are numerous and very, very substantial. Before entering into force of the law №35-FZ, the Part fourth of the CC contained 328 articles. The law 35-FZ amends 169 articles of it and adds seven new articles. I am convinced that the law is a rather big step towards building a modern system of intellectual property legislation in Russia. Conclusions: More than 150 amendments were introduced by the law №35-FZ. Author estimates about 80% of them as positive and about 20% as negative and erroneous. These amendments do not contradict the international intellectual property agreements signed by the Russian Federation. Generally their purpose is to enhance and clarify the Russian intellectual property legislation and to narrow the gap between Russian and European intellectual property laws. The author of this article deals with intellectual property laws more than 50 years on. This paper is a short English version of various articles on this topic published in Russian, in journals: «The business and the law» and «The patents and licenses». (shrink)

Kant famously insisted that “the idea of the will of every rational being as a universally legislative will” is the supreme principle of morality. Recent interpreters have taken this emphasis on the self-legislation of the moral law as evidence that Kant endorsed a distinctively constructivist conception of morality according to which the moral law is a positive law, created by us. But a closer historical examination suggests otherwise. Kant developed his conception of legislation in the context of his opposition to (...) theological voluntarist accounts of morality and his engagement with conceptions of obligation found in his Wolffian predecessors. In order to defend important claims about the necessity and immediacy of moral obligation, Kant drew and refined a distinction between the legislation and authorship of the moral law in a way that precludes standard theological voluntarist theories and presents an obstacle to recent constructivist interpretations. A correct understanding of Kant's development and use of this distinction reveals that his conception of legislation leaves little room for constructivist moral anti-realism. (shrink)

The tension between external forces for better ethics in organizations, represented by legislation such as the Sarbanes–Oxley Act (SOX), and the call for internal forces represented by increased educational coverage, has never been as apparent. This study examines business school faculty attitudes about recent corporate ethics lapses, including opinions about root causes, potential solutions, and ethics coverage in their courses. In assessing root causes, faculty point to a failure of systems such as legal/professional and management (external) and declining personal values (...) (internal). We also found that faculty recommend external forces as a remedy more often than increased ethics educational coverage; we contextualize this finding with recent ethics education literature. We conclude by proposing that neither legislation nor ethics education alone are complete when addressing widespread unethical corporate acts and offer a multi-faceted approach to ethics educational opportunities. (shrink)

This book discusses how Plato, one the fiercest legal critics in ancient Greece, became – in the longue durée – its most influential legislator. Making use of a vast scholarly literature, and offering original readings of a number of dialogues, it argues that the need for legal critique and the desire for legal permanence set the long arc of Plato’s corpus—from the Apology to the Laws. Modern philosophers and legal historians have tended to overlook the fact that Plato was the (...) most prolific legislator in ancient Greece. In the pages of his Republic and Laws, he drafted more than 700 statutes. This is more legal material than can be credited to the archetypal Greek legislators—Lycurgus, Draco, and Solon. The status of Plato’s laws is unique, since he composed them for purely hypothetical cities. And remarkably, he introduced this new genre by writing hard-hitting critiques of the Greek ideal of the sovereignty of law. Writing in the milieu in which immutable divine law vied for the first time with volatile democratic law, Plato rejected both sources of law, and sought to derive his laws from what he called ‘political technique’. At the core of this technique is the question of how the idea of justice relates to legal and institutional change. Filled with sharp observations and bold claims, Platonic Legislations shows that it is possible to see Plato—and our own legal culture—in a new light “In this provocative, intelligent, and elegant work D. L. Dusenbury has posed crucial questions not only as regards Plato’s thought in the making, but also as regards our contemporaneity.”—Giorgio Camassa, University of Udine “There is a tension in Greek law, and in Greek legal thinking, between an understanding of law as unchangeable and authoritative, and a recognition that formal rules are often insufficient for the interpretation of reality, and need to be constantly revised to match it. Dusenbury’s book illuminates the sophistication of Plato’s legal thought in its engagement with this tension, and explores the potential of Plato’s reflection for modern legal theory.”—Mirko Canevaro, The University of Edinburgh. (shrink)

My aesthetic judgements seem to make claims on you. While some popular accounts of aesthetic normativity say that the force of these claims is third-personal, I argue that it is actually second-personal. This point may sound like a bland technicality, but it points to a novel idea about what aesthetic judgements ultimately are and what they do. It suggests, in particular, that aesthetic judgements are motions in the collective legislation of the nature of aesthetic activity. This conception is recommended by (...) its ability to explain some important but otherwise recondite features of aesthetic practice and, more importantly, by allowing us to ground the normativity of aesthetic judgement in the familiar normativity of practice. It also offers a more systematic way of understanding the rivalry between the ideals of aesthetic universality and diversity. (shrink)

In recent years, the National Crime Records Bureau recommendation is that the growth rate of crime against women has skyrocketed in India, even higher than the population growth rate. According to lawyer, Kamlesh Vaswani, the commercial exploitation of coital activity paramount in pornography is the result of crimes against women, and fills perverse traits in the roots of society. Following that, he filed a petition (2013) in the Honourable Supreme Court to blanket ban pornography with the aim of diluting the (...) subordination of women and the crimes against women in society. Taking this into consideration, I argue that the Vaswani petition draws back the issue of twentieth century Western political and philosophical debate on pornography which triggers one of the moot problems of moral legislation—whether the state should be neutral or not towards individuals’ preferences, merits, desires, and the status to live well. This article focuses on whether this discourse has any relevance in the Indian value system. In this article, through the comparison between Indian and Western values, I make an attempt to analyse the moot problem of moral legislation which is bridging the gap between public and private morality for the well-being of women as well as our society. (shrink)

It would be unproblematically correct to say "the laws of Pennsylvania have it that a person is eligible to vote at age eighteen." But whether someone is actually mature enough to exercise his electoral franchise appropriately will very much depend on the individual. In setting the voting age by fiat, Society leaps in where Nature fears to tread. Many quantities that figure importantly in shaping our conduct of affairs are not specified by nature but are artifacts of human contrivance. At (...) what age, for example, is a person old enough to marry, drink alcoholic beverages responsibly, handle fireworks safely, manage his own property, enter into contracts, see a violent movie, serve on a jury, or hold a public office? These are not quantities writ large in nature's impersonal scheme of things but matters of social decision made for reasons of public polity and administrative convenience. They are legislated quantities. (shrink)

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

Democracies that appoint legislators through elections in territorially defined, sub-national constituencies and simultaneously enfranchise expatriate citizens must either assign expatriate voters to in-country constituencies (assimilated representation) or group them into distinct overseas constituencies that elect their own legislators (discrete representation). This essay critically reviews extant normative discussions of the two models and develops a normative analysis of its own. This suggests that when expatriates form but a small part of a democracy’s overall demos, discrete representation is the more attractive model (...) of expatriate representation as it overall better satisfies four important standards of evaluation, namely: equal opportunities for political influence, deliberation within the legislature, deliberation among constituents, and partisan voter mobilisation. This argument is also defended against the potential objections that the said standards can be satisfied by other means than discrete expatriate representation and that the defence of discrete expatriate representation implies a proliferation of special constituencies. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore some implications of (...) recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

Over the past few years, over a dozen states have proposed, and almost as many have passed, something referred to as the Pain-Capable Unborn Child Protection Act, a piece of legislation that makes abortion impermissible once fetal pain is possible and that further stipulates the fetus can feel pain at or before 20 weeks of gestation. Some very important questions immediately relevant to the abortion debate, perhaps even to the more complex issue of fetal rights, are raised by this legislation, (...) especially because it would impinge on the second-trimester abortion rights guaranteed by Roe. We first inquire whether the claim of fetal pain perception at or before 20 weeks is true and how such a claim should be substantiated. Next, we inquire whether the fetal capacity to experience pain, at whatever stage of development, reflects on the morality of abortion and whether it should be at all relevant to determining its legality. Finally, we would like to explore the implications that a commitment to a pain-related or sentience criterion of rights might have for a pro-life agenda. (shrink)

The main purpose of legal interpretation is to create conditions for the effective functioning of law and its components by clarifying their true content, which eliminates any doubts and ambiguities. The purpose of this article is: first, to analyze the provisions of current Ukrainian legislation for identifying the general approaches embodied in it and the principles for the implementation of legal interpretation activities by state power bodies; secondly: presentation on the basis of modern achievements and developments of legal science of (...) the system of measures for standardization of such activity, bringing it in line with the needs of law enforcement practice. The solution of the set tasks was carried out using the method of philosophical dialectics, a system of general scientific and special scientific methods of cognition, which are based on the principles of objectivity, comprehensiveness, complexity. Based on the analysis of the normative material, it is concluded that there is no single harmonized approach in the Ukrainian legislation on the procedure for providing clarifications of the content of normative-legal acts. The authors give arguments on the need to clarify and streamline the legal interpretation activity by state bodies and propose a number of measures to achieve this goal. Based on the conducted analysis of the normative material, the authors outline the main problematic issues of the legislative definition of the basics of legal interpretation and provide specific proposals for improving the current legislation in this area. (shrink)

Many democracies use geographic constituencies to elect some or all of their legislators. Furthermore, many people regard this as desirable in a noncomparative sense, thinking that local constituencies are not necessarily superior to other schemes but are nevertheless attractive when considered on their own merits. Yet, this position of noncomparative constituency localism is now under philosophical pressure as local constituencies have recently attracted severe criticism. This article examines how damaging this recent criticism is, and argues that within limits, noncomparative constituency (...) localism remains philosophically tenable despite the criticisms. The article shows that noncomparative constituency localism is compelling in the first place because geographic constituencies foster partisan voter mobilisation, and practices of constituency service help to sustain deliberation among constituents and within the legislature and promote the realisation of equal opportunity for political influence. The article further argues that it is unwarranted to criticise geographic constituencies for being biased against geographically dispersed voter groups, for causing vote-seat disproportionality, and for being vulnerable to gerrymandering. The article also discusses the criticisms that local constituencies may pose risks of inefficiency and injustice in resource allocation decisions, may lead legislators to neglect the common good, and may limit citizens’ control over the political agenda. Whilst conceding that these objections may be valid, the article argues that they do not outweigh the diverse and normatively weighty considerations speaking in favour of noncomparative constituency localism. Finally, the article’s analysis is defended against several variants of the charge that it exaggerates the benefits of geographic constituencies. (shrink)

This paper is not about the medical condition of AIDS. Nor is it about the history of the condition since it was first reported in Atlanta, Georgia in 1981. It looks rather, at the catalogue of legislative and other legal responses to the spread of AIDS. The paper analyses the AIDS condition in its historical context. The hysteria accompanying the outbreak of AIDS is contrasted with the similar hysteria associated with other previous epidemics experienced in Australia over the past two (...) centuries. The paper categorises the responses of lawmakers to the condition, according to the approach taken; from 'full blast', through 'moderate heat' to 'low key' or an attempt to avoid or minimise legal intervention. It is suggested that the appropriate response should depend upon such factors as the present magnitude of the condition, its likely future course, the availability of cures and protections against its spread and objectives being sought by intervention. Unless these factors are taken into account gross over-reaction can occur, causing social disruption and much personal injustice. (shrink)

This edited volume covers new ground by bringing together perspectives from symbolic legislation theory on the one hand, and from biolaw and bioethics on the other hand. Symbolic legislation has a bad name. It usually refers to instances of legislation which are ineffective and that serve other political and social goals than the goals officially stated. Recently, a more positive notion of symbolic legislation has emerged in legislative theory. From this perspective, symbolic legislation is regarded as a positive alternative to (...) the more traditional, top-down legislative approach. The legislature no longer merely issues commands backed up with severe sanctions, as in instrumental legislation. Instead, lawmakers provide open and aspirational norms that are meant to change behavior not by means of threat, but indirectly, through debate and social interaction. Since the 1990s, biomedical developments have revived discussions on symbolic legislation. One of the reasons is that biomedical legislation touches on deep-rooted, symbolic-cultural representations of the biological aspects of human life. Moreover, as it is often impossible to reach consensus on these controversial questions, legislators have sought alternative ways to develop legal frameworks. Consequently, communicative and interactive approaches to legislation are prominent within the governance of medical biotechnology. The symbolic dimensions of biolaw are often overlooked. Yet, it is clear that the symbolic is at the heart of many legal-political debates on bioethical questions. Since the rise of biomedical technologies, human body materials have acquired a scientific, medical and even commercial value. These new approaches, which radically question existing legal symbolizations of the human body, raise the question whether and how the law should continue to reflect symbolic values and meanings. Moreover, how can we decide what these symbolic values are, given the fact that we live in a pluralistic society? (shrink)

When citizens and legislators attempt to justify coercive acts, such as fines or imprisonment, they often do so on the basis of controversial justificatory principles. There are at least two ways a principle can be controversial: one may claim that the principle in question is false; or one may claim that the principle, correctly applied, does not actually justify the specific act in question. Thus, suppose the state invokes the principle ‘false beliefs should be censored’ to justify silencing a dissident. (...) The dissident might disagree because she thinks the state should not be in the business of censoring false beliefs, or she might agree with the principle but object to the action because she is quite convinced that her beliefs are not false. (shrink)

First published in 1982. Routledge is an imprint of Taylor & Francis, an informa company.

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. Firstly, (...) I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)