Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also specifically addressed legal issues raised by palliative (...) care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan. (shrink)

This work investigates worship and formation in view of Christian anthropology, particularly union with Christ.

Journal Name: Semiotica Issue: Ahead of print.

Despite Kepler's candid and detailed report on the discovery of his first two laws, the problem of the origin of these laws still remains unresolved. Attempts to unravel the problem have varied from considering the discovery a chance to one arising from a well-reasoned, patient, and systematic empirical study of Tycho Brahe's observations . On the issue of the influence of non-scientific factors on this discovery also various views exist. Small and Dreyer do not even consider this question. Strong and, (...) to some extent, Westman deny any positive role to such an influence, whereas Koestler and, in some sense, Burtt seem to go to the other extreme. Between these two extremes lie the views of Aiton, Gingerich, Holton, Koyre, and Wilson. I argue that all these attempts are either inaccurate or incomplete because they fail to pay attention to all the relevant factors involved. In Kepler's works and thought I see an interaction among empirical, philosophical, and religious ideas. I show that this interaction had a decisive role to play in the discovery of the laws. If Kepler had emphasized only the empirical, he probably would have been another Tycho, but not the discoverer of the laws and the father of modern astronomy. On the other hand, if he had concentrated only on the philosophical, he would have remained just one among the renaissance natural philosophers. Religious ideas alone also would not have led him to the laws. But when all the three were allowed to interact and collaborate, mutually modifying and complementing each other, the result was the laws. My study has two parts. In the first part I identify and discuss Kepler's religious, philosophical, and scientific ideas. In the second part I discuss his actual discovery of the first two laws. I divide the process of discovery into different stages and show that in each all the three factors had to collaborate to make the discovery possible. I base my studies on Kepler's own original books and letters, supplemented by reflection and commentaries on them by eminent Kepler scholars. (shrink)

There is an ever-increasing interest in the question of how and why legal norms can effectively guide human action. This compact volume demonstrates how economic tools can be used to examine this question and scrutinize these legal norms. Indeed, this is one of the first text to be based on civil law instead of the more usual common law, situating the study of both private and public law within the framework of institutional economics, with recommendations for further reading and a (...) list of key terms in each chapter. Besides the standard economic problems in property, tort, contract, crime and litigation, areas covered include: new institutional economics public choice constitutional law public administrations regulatory impact analysis. This book is essential reading for students in law schools and economics departments alike, particularly those engaged with the methodology of law and economics, applied economics and economic methods of legal policy. (shrink)

When we understand the ontological, political and legal underpinnings associated with the concept of freedom, liberty and rights, we understand the relationship between rights and laws. Rights can be understood as liberties or as laws. Liberties can be understood as de facto rights or as de jure rights. It is de jure rights that are recognized as laws that provide the basis for the rule of law. It is the rule of law that provides the basis for equal rights and (...) equal justice in an ideal republic. Rights, laws and the rule of law are distinct. Rights are self-evident truths. Laws are imperatives backed by sanctions (John Austin). The rule of law is a principle that purports that the recognition de facto and de jure rights provide the basis for political, social and economic justice. People live by the rights recognized by law. As such, the rule of law advocates two fundamental underpinnings in a republic: (1) the recognition of rights as the basis for equal rights and equal justice, and (2) the recognition of law as the basis for governance. (H.L.A. Hart). However, since the recognition of law is the recognition of rights, the recognition of rights precedes the governance by law principle. What is fundamental to the rule of law is that it recognizes rights, legitimizes political rule and administers equal/blind justice (Meyers, 1213). As such, no branch of government can weaponize laws to terminate recognized individual rights. The maxim of the republic should be – while anyone can be the ruler, everyone lives as free as the ruler. Majority rule and protection of self-evident individual rights is fundamental to an ideal republic. Keywords: law, equal rights, equal justice, impunity, rule of law. (shrink)

Historians of science and technology and STS practitioners have always taken intellectual property very seriously but, with some notable exceptions, they have typically refrained from looking “into” it. There is mounting evidence, however, that they can open up the black box of IP as effectively as they have done for the technosciences, enriching their discipline while making significant contributions to legal studies. One approach is to look at the technologies through which patent law construes its object – the invention (...) – in specific settings and periods by examining procedures, classifications, archives, models, repositories, patent specifications (in both their linguistic and pictorial dimensions), and the highly specialized language of patent claims. More ambitiously, we could treat intellectual property as a technology itself. Patent law does not evolve either by merely articulating its doctrine in response to technological developments. The line between what does and does not count as invention may be redrawn with the emergence of new objects and technologies, but is not determined by them. It is this constructive feature of the law that we are trying to capture with the notion of law as technology. We hope that thinking about the technologies of the law and the law as technology will bring into question what we mean by both “technology” and “law”. (shrink)

The cogito ergo sum of Descartes is one of the best-known--and simplest--of all philosophical formulations, but ever since it was first propounded it has defied any formal accounting of its validity. How is it that so simple and important an argument has caused such difficulty and such philosophical controversy? In this pioneering work, Jerrold Katz argues that the problem with the cogito lies where it is least suspected--in a deficiency in the theory of language and logic that Cartesian scholars have (...) brought to the study of the cogito. Katz contends that the laws of traditional logic have distorted Descartes's reasoning so that it no longer fits either Descartes's own account of the cogito in his writings or the role he assigns it in his project. Katz proposes that the cogito can be understood as an example of "analytic entailment," a concept in the philosophy of language whereby a statement can be a formally valid inference without depending on a law of logic. Developing and defending his thesis, he shows us that by grappling with an historical philosophical problem it is possible to make an original contribution to the advance of contemporary philosopy. (shrink)

On the basis of detailed arguments drawn from historical and philological analyses of Deuteronomy, the author argues that the laws proclaimed in it were declared by Moses and subsequently placed in the hands of the priests.--G. B.

The primary purpose of this book is to examine the logical features common to all the sciences. Each science proceeds by inventing general principles from which are deduced the consequences to be tested by observation and experiment; the author shows how the implications of this process explain some of its more baffling features and resolves many of the difficulties that philosophers have found in them. His exposition is by way of detailed examples.

ABSTRACTProfessional associations, once the bodies responsible for professional self-regulation, have lost regulatory power. Some have entered into co-regulatory arrangements with state or independ...

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ministers of the Law: A Natural Law Theory of Legal AuthorityThomas J. BushlackMinisters of the Law: A Natural Law Theory of Legal Authority Jean Porter Grand Rapids, Mich.: Eerdmans, 2010. 368 pp. $30.00Jean Porter’s most recent book is the fruit of her participation with the Emory Center for the Study of Law and Religion since 2005. In this project she undertakes two interrelated tasks. First, she provides compelling (...) reasons for Christian ethicists to engage in questions internal to the discipline of jurisprudence. Second, she demonstrates how a natural law theory grounded in the work of the medieval scholastics can address some of the questions of contemporary jurisprudence. Readers familiar with her previous work will be delighted that she has extended her constructive account of natural law into the realms of jurisprudence and in the process also engages cultural psychology, rhetoric, political philosophy, and international law.Porter begins her engagement with jurisprudence in chapter 1 by noting a paradox recognized by many legal philosophers in the Anglophone world. Legal systems, as they have developed in the West, are characterized by a high degree of autonomy and independence vis-à-vis other social dynamics such as politics or morality. At the same time, however, no legal system can function in complete isolation from considerations of politics and morality. How can we account for the paradoxical autonomy of legal authority? Porter suggests that a scholastic account of natural law can provide a rationally defensible solution to this paradox by developing an account of natural authority (in chapter 2).The force of Porter’s argument rests on the capacity of her account to justify political and legal authority as a natural expression of the authority that any community exercises vis-à-vis its individual members. A community’s authority over its members is justified on the grounds that in prescribing or prohibiting particular acts, it must appeal to claims that could potentially be recognized as justifiable by any rational member of that community. The concept that creates this important hinge between an individual’s good and the good of the community is, of course, the common good. Scholars interested in the concept of the common good will find that her reflection upon it is both rooted deeply in the Christian tradition and applied with fresh insight to the realm of politics (chapter 3) and law (chapter 4). [End Page 210]One potential objection to Porter’s account of natural law could arise in response to her insistence that natural inclinations “underdetermine” the normative content of a natural law morality, leaving her account open to charges of cultural relativism or of being merely descriptive as opposed to normative. However, in this work she is able to turn these criticisms into assets for her account of natural law. She shows (successfully, I believe) how her theory of natural law is able to account for the plurality of moral, political, and legal systems that exist in our world today while still providing normative grounds for critiquing existing social systems. And in chapter 5 she demonstrates how nonderogable, jus cogens principles can be developed from her account of natural law and applied to the field of international law and human rights. In fact, the final section left me hungry for further development of her insights regarding the relationship between natural and international law.This book is written with the same rigorous logic and careful research that has made Porter one of the leading scholars of natural law theory in the field today. As such, this book would be suitable for academics in a wide variety of fields, such as law, political theory, and of course Christian ethics, or for advanced graduate students. It is most certainly a groundbreaking work for demonstrating how a theological account of natural law can engage in constructive dialogue with legal theory and politics at both a theoretical and a practical level.Thomas J. BushlackUniversity of St. ThomasCopyright © 2012 The Society of Christian Ethics... (shrink)

Professor Pompa's study of Vico has done a great deal to stimulate and inform the growing interest in the English-speaking world in this remarkable figure. It remains the only work devoted almost exclusively to an interpretation of the New Science and offers a comprehensive guide to the main theoretical problems to which the text gives rise. For this second edition Professor Pompa has responded to the reactions of reviewers and critics and added a new chapter which analyses Vico's conception of (...) the principles which govern the development of law. (shrink)

The body of the law is an ambiguous phrase. Conventionally, it designates the law as a determinate corpus; legal codes, statutes, and the rulings of common law. But it can also refer to the subjected body that is produced by and is part of the law. This subjected body is necessary for the law's existence. Thinking Through the Body of the Law reconceives the role of the body in the founding, maintaining, and regulation of our legal systems and social order (...) and elaborates on its implications for issues of legal responsibility and justice. Taking into account and sometimes challenging the tenets of critical legal theory, critical race theory, and feminist jurisprudence, these essays examine the body and the law as they relate to surrogacy, the Holocaust, land-rights for Aboriginals, murder, the media and insanity, taxation, genetic engineering, and sexy dressing and sexual harassment. (shrink)

This paper argues that Calvin provides an account of the radical unmaking of the human moral subject at the hands of sin and its even more radical remaking at the hands of divine grace. The moral significance of human continuity during this soteriological transit, including such things as reason and will as such, is shown to be overreached by that of what becomes of the human creature in its history at the hands of both sin and God’s grace. Calvin’s treatment (...) of the first and third uses of the law confirms and illumines this claim decisively. Insight into this matter is aided by consideration of J. Louis Martyn’s discussion of the status of the moral subject in Pauline paraenesis A Reformed theological ethic that takes its cues from Calvin’s teaching in this regard will thus regard the adventitious realities of sin and grace, and their serial consequences for the constitution of the human moral agent, to represent the most important meta-ethical realities to be considered. (shrink)

The book examines what advocates of the law of karma mean by the doctrine, various ways they interpret it, and how they see it operating. The study investigates and critically evaluates the law of karma's connections to significant philosophical concepts like causation, freedom, God, persons, the moral law, liberation, and immortality. For example, it explores in depth the implications of the doctrine for whether we are free or fatalistically determined, whether human suffering can be reconciled with cosmic justice, the nature (...) of the self, and the character of moral experience. (shrink)

In Virtue, Piety and the Law Katharina Ivanyi examines Birgivī Meḥmed Efendī's (d. 981/1573) al-Ṭarīqa al-muḥammadiyya, a major work of pietist exhortation and advice, composed by the sixteenth-century Ottoman jurist, Ḥadīth scholar and grammarian, who would articulate a style of religiosity that had considerable reformist appeal into modern times. Linking the cultivation of individual virtue to questions of wider political, social and economic concern, Birgivīplayed a significant role in the negotiation and articulation of early modern Ottoman Ḥanafīpiety. Birgivī's deep mistrust (...) of the passions of the human soul led him to prescribe a regime of self-surveillance and control that was only matched in rigor by his likewise exacting interpretation of the law in matters of everyday life, as much as in state practices, such as the cash waqf, Ottoman land tenure and taxation. (shrink)

Understanding the influencing factors of cyberbullying is key to effectively curbing cyberbullying. Among the various factors, this study focused on the personal level of individual students and categorized the influencing factors of cyberbullying among college students into five sublevels, i.e., background, Internet use and social network habits, personality, emotion, and literacy related to digital citizenship. Then a questionnaire survey was applied to 947 Chinese college students. The results show that cyberbullying among Chinese college students are generally at a low level. (...) There are many factors influence cyberbullying. Specifically, at the personal background level, gender has a significant impact on cyberbullying and being cyberbullied. In terms of personal Internet use and social network habits, students’ average daily online time has no significant correlation with cyberbullying and being cyberbullied; however, the proportion of online non-learning time has a significantly positive correlation with cyberbullying, and the proportion of online learning/work time has a significant impact on being cyberbullied. At the personality level, the Big Five personality traits have varying degrees of correlation with and influence on cyberbullying and being cyberbullied. At the personal emotions level, students’ life satisfaction has a significantly negative correlation with cyberbullying and being cyberbullied while it only has a significant impact on being cyberbullied; the personal stress and empathetic concern aspects of empathy have a significantly positive correlation with cyberbullying and being cyberbullied among female students. At the literacy related to digital citizenship level, students’ understanding of and compliance with Internet etiquette have significantly negative impacts on cyberbullying; the ability to communicate and collaborate online and Internet addiction have significantly positive impacts on cyberbullying and being cyberbullied; the understanding of and compliance with relevant digital laws and regulations have significantly negative correlations with cyberbullying and being cyberbullied. Overall, college students’ digital citizenship level has a significantly negative correlation with cyberbullying but no significant correlation with being cyberbullied. Finally, analysis and suggestions were provided according to these statistical results and the effects of these factors on cyberbullying and being cyberbullied among college students, so as to help solve this problem and provide a new perspective for research in this field. (shrink)

The conceptual excitement of science often seems geared only to work in contemporary physics. Thus, philosophers regularly discuss current cosmology, relativity, or the foundations of microphysics. In these areas one's philosophy is stretched and strained far beyond what our ancestors might have anticipated. Historians of science have also focused attention on past events by remarking their analogies and similarities with perplexities in physics today. But there are statements, hypotheses and theories of the past which are rewarding in themselves, without having (...) to be referred to the agonies which now confound quantum theory and cosmology. Specifically, the First Law of Motion--the "Law of Inertia"--this has everything a logician of science could look for. Understanding the complexities and perplexities of this fundamental mechanical statement is in itself to gain insight into what theoretical physics in general really is. With this in view a study of the law is undertaken. (shrink)

This paper discusses in depth the critical thought of religion shown by young Marx in the Introduction to the Critique of Hegel's Philosophy of Law, which is not only an important part of Marx's early theoretical explorations, but also an important symbol of his transformation from idealism to materialism. In the Introduction to the Critique of Hegel's Philosophy of Law, Marx systematically expounded the nature, function, root of reality, and critical method of religion through the perspective of anthroposophical materialism. He (...) inherited Feuerbach's theory that ‘the essence of religion is the alienation of human nature and went beyond his abstract anthropocentrism to direct the focus of the critique of religion to real social relations. This study makes comprehensive use of various methods, such as documentary, comparative, and historical research, to sort out, summarize, and conclude Marx's early critical thought on religion on the basis of existing research results, with a view to providing valuable academic reference for domestic and foreign academics. Although this study is devoted to a comprehensive and in-depth analysis of the critical thought of religion in the Introduction to the Critique of Hegel's Philosophy of Law, the argumentation of some viewpoints may be insufficient due to the constraints of my current level of academic research and the availability of materials. Future research can continue to expand the scope of research and enrich the research methodology with the development of practice, so as to better make up for the shortcomings of this study. (shrink)

Although much recent social science and humanities work has been a revolt against simplification, this volume explores the contrast between simplicity and complexity to reveal that this dichotomy, itself, is too simplistic. John Law and Annemarie Mol have gathered a distinguished panel of contributors to offer—particularly within the field of science studies—approaches to a theory of complexity, and at the same time a theoretical introduction to the topic. Indeed, they examine not only ways of relating to complexity but complexity (...) _in practice._ Individual essays study complexity from a variety of perspectives, addressing market behavior, medical interventions, aeronautical design, the governing of supranational states, ecology, roadbuilding, meteorology, the science of complexity itself, and the psychology of childhood trauma. Other topics include complex wholes in the sciences, moral complexity in seemingly amoral endeavors, and issues relating to the protection of African elephants. With a focus on such concepts as multiplicity, partial connections, and ebbs and flows, the collection includes narratives from Kenya, Great Britain, Papua New Guinea, the Netherlands, France, and the meetings of the European Commission, written by anthropologists, economists, philosophers, psychologists, sociologists, and scholars of science, technology, and society. _Contributors._ Andrew Barry, Steven D. Brown, Michel Callon, Chunglin Kwa, John Law, Nick Lee, Annemarie Mol, Marilyn Strathern, Laurent Thévenot, Charis Thompson. (shrink)

The assessment of chronic pain is a highly unmet medical need. Chronic pain is also the subject of a large and costly category of legal claims. Yet, with pain cases, the jury always face a doubt: is the claimant faking or malingering? How can we be assured that the claimant is 'really' in pain? Most recently, several new neuroimaging technologies are promising to solve these questions, by rendering pain visible, measurable and, to some degree, verifiable. The results of these advancements (...) have prompted us to think of pain in a different way, i.e. as an altered brain state in which functional connections are modified, with components of degenerative aspects. But, does this imply the stronger claim that these technologies allow us to 'know', or to literally 'see', the pain of others? Is the pain being objectified by these techniques? And if so, what might the law do differently, or do better? (shrink)

This paper discusses the role of Law and Legal Thinking in Critical Theory with specific reference to the arguments that Michael Hardt and Antonio Negri offer in their book Commonwealth. The core idea is that Critical Theory is no less radical, but much more concrete, when it is performing not only an external, but also an internal critique of the Law. It shows that the role of the law in critical theory emerges as a problem when the latter claims that (...) ‘there is no outside’ and that ‘the legal base of the system structures our lives.’ It then discusses optimistic and pessimistic strategies to overcome the problem, and argue for a demanding strategy which consist in articulating the external and the internal critique of the law. To make this point, the paper goes back to the epistemic context in which critical attitudes are deployed (the ‘Conflict of the Faculties’), describes the four theoretical moves constitutive of the historical moment in which, at the end of the 18th Century, modern law as we know it was conceived of and founded; and sketches the key moments of the history of the internal critique of the law. It then illustrates the demanding strategy with examples taken from the field of Intellectual Property, and concludes that the Law is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system and also that alternatives spoken in the language of the law are no less radical, but certainly, more concrete than others. (shrink)

The law of God: these words conjure an image of Moses breaking the tablets at Mount Sinai, but the history of the alliance between law and divinity is so much longer, and its scope so much broader, than a single Judeo-Christian scene can possibly suggest. In his stunningly ambitious new history, Rémi Brague goes back three thousand years to trace this idea of divine law in the West from prehistoric religions to modern times—giving new depth to today’s discussions about the (...) role of God in worldly affairs. Brague masterfully describes the differing conceptions of divine law in Judaic, Islamic, and Christian traditions and illuminates these ideas with a wide range of philosophical, political, and religious sources. In conclusion, he addresses the recent break in the alliance between law and divinity—when modern societies, far from connecting the two, started to think of law simply as the rule human community gives itself. Exploring what this disconnection means for the contemporary world, Brague—powerfully expanding on the project he began with _The Wisdom of the World_—re-engages readers in a millennia-long intellectual tradition, ultimately arriving at a better comprehension of our own modernity. “Brague’s sense of intellectual adventure is what makes his work genuinely exciting to read. _The Law of God_ offers a challenge that anyone concerned with today’s religious struggles ought to take up.”—Adam Kirsch, _New York__ Sun_ __ “Scholars and students of contemporary world events, to the extent that these may be viewed as a clash of rival fundamentalisms, will have much to gain from Brague’s study. Ideally, in that case, the book seems to be both an obvious primer and launching pad for further scholarship.”—_Times Higher Education Supplement_. (shrink)

To explain the phenomena in the world of our experience, to answer the question “why?” rather than only the question “what?”, is one of the foremost objectives of all rational inquiry; and especially, scientific research in its various branches strives to go beyond a mere description of its subject matter by providing an explanation of the phenomena it investigates. While there is rather general agreement about this chief objective of science, there exists considerable difference of opinion as to the function (...) and the essential characteristics of scientific explanation. In the present essay, an attempt will be made to shed some light on these issues by means of an elementary survey of the basic pattern of scientific explanation and a subsequent more rigorous analysis of the concept of law and of the logical structure of explanatory arguments. (shrink)

This article employs a consideration of Peter Fitzpatrick’s early work in Papua New Guinea to reflect on legal and social developments in the country since his residence there during the independence period. In particular, Fitzpatrick’s concerns about the emergence of a Papua New Guinean bourgeois legality that would shape the postcolony are shown to have been prescient in some respects, and also to have had other outcomes unanticipated by the Marxist legal and anthropological imagination of the 1970s. Finally, I use (...) examples from the heterogeneous lawscape of Papua New Guinean cities to illustrate how the ‘true people’s law’ envisioned by Fitzpatrick is in the process of emerging in spaces outside of formal legislative or court processes. (shrink)

本书通过深入探究边沁法理学终极的哲学根据及其思想渊源而发现,在认识论上,边沁与贝克莱和休谟是一脉相承的,都秉持主观主义认识论,哈特所谓的道德中立在边沁法理学那里是根本不存在的.哈特的法律与道德是分离的 命题,最终依据的是G.E.摩尔所创立的认知与情感是分离的学说,而G.E.摩尔的分离学说乃是对休谟的"是—应当"区分学说的误解.

Since the Reformation and Enlightenment, the Western world has witnessed the incremental decline of religious influence. Yet, key legal protections and duties incumbent on civilians and state actors in both avowedly secular states and ruling theocracies, predominantly Islamic, are to a lesser or greater extent determined by religious values. Although it is often claimed that the modern secular state encourages the adoption of liberal values and allows for the formulation of general law according to the free will of its people, (...) the historical legacy of law and particularly its synthesis with the Judeo-Christian heritage is apparent. In the UK, the continuing centrality of religion in what purports to be a secular system of laws, is demonstrated by the introduction of elements of Sharia law. In an increasingly culturally-diverse society, the recognition of Islamic law may be interpreted as the tacit acknowledgement of the existing inherent faith influences which continue to inform many legal innovations, and represents an explicit attempt to rebalance the privileging of one set of precepts above another. It is suggested that religion continues to occupy a central position in lawmaking; performing a cultural, political, institutional and, importantly, symbolic role and this is evidenced for instance by the narratives which are imposed on individuals in relation to areas of topical significance such as matrimony, terminal illness, abortion, gender and sexual morality. This paper argues against those pronouncements of the retreat of religion in state affairs and, rather, reveals a set of key structural relations and signifiers which are informed by opinions redolent of, not least of all, a peculiar generic proscriptive religiosity. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on (...) Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

The claims of Mt. 5:17—20 are often taken to provide the interpretive key to the ethical claims of the Sermon on the Mount as a whole. The theological issue at stake here is the determinative relation between Christ's person and work and his teaching. This article explores the vital role played by the identity of Christ as the `fulfiller of the law' and `bringer of the Kingdom' in the exegesis of the Sermon offered by Eduard Thurneysen and Dietrich Bonhoeffer in (...) their respective works Die Bergpredigt (1936) and Nachfolge (1937). Both readings assert that the force and nature of the claims of the Sermon cannot be understood aright apart from constant attention to the difference made by the fact that Christ is the preacher. Out of this shared conviction, both theologians advance a reading of the Sermon as `the gospel itself' in the light of the eschatological identity of Jesus. Such readings of the Sermon, arising amidst the German Kirchenkampf of the 1930s, represent substantial contributions to the `responsible interpretation' of the Barmen Declaration (1934) whose second article states that, `As Jesus Christ is God's assurance of the forgiveness of all our sins, so in the same way and with the same seriousness is he also God's mighty claim upon our whole life.'. (shrink)