Der Kerngedanke der politischen Theorie des Wilhelm von Humboldt ist äußerst schlicht und übersichtlich: In seinen "Ideen zu einem Versuch, die Gränzen der Wirksamkeit des Staats zu bestimmen" heißt es, dass die Funktion des Staats auf die Erhaltung der inneren und auswärtigen Sicherheit beschränkt werden soll. Diese Staatsauffassung findet ihre Begründung in einer Anthropologie, die dem Menschen das Recht und zugleich die Aufgabe zuweist, durch das spontane Zusammenwirken mit den anderen seine Potenzialitäten zur Entfaltung zu bringen. Schlicht und übersichtlich wie (...) diese Staats- und Menschenlehre auch scheinen mag, ist es an ihr außerordentlich interessant, einerseits welche Leitgedanken ihr zugrunde liegen, und andererseits welche theoretischen Neuigkeiten sie erzielt. Hier möchte ich insbesondere vier Aspekte hervorheben: 1- Individualismus: Der Angelpunkt der gesamten Philosophie Humboldts ist das Individuum, aus dem allerdings nie ein selbstgenügsames Subjekt wird; 2- Liberalismus: Humboldt formuliert als erster den Katalog der Motive des Liberalismus des 19. Jahrhunderts; 3- Gesetzmäßigkeitsprinzip: im Sinne seiner Ausformulierung des Rechts- und Freiheitsbegriffs erarbeitet Humboldt ein Gesetzmäßigkeitsprinzip anthropologischen Charakters; 4- Legitimationsprinzip: in Anlehnung an die Prämissen, aus denen sich das neue Gesetzmäßigkeitsprinzip ergibt, setzt Humboldt ein neues Legitimationsprinzip, das unserem Begriffspaar „materielle Verfassung-formelle Verfassung“ sehr ähnelt. (shrink)

This chapter is devoted to the discussion of religious freedom and the anti-racist fight in the Black Diaspora in Latin America, considering the historical processes that involve such discussion, including legal apparatus such as Human Rights and local legislation. Therefore, as a starting point, we take the historical conditions of the emergence of Candomblé in Brazil, that are linked to the trafficking of enslaved African peoples and their resistance to keep alive in their memories, their religious beliefs and (...) their worldviews. Wherefore, it is a discussion in which religious freedom is not dissociated from the anti-racist struggle in the case of Brazil, where, in the 20th century, the myth of racial democracy is produced in the light of studies carried out by Gilberto Freyre in the midst of the 1922 post-week modernist movement. (shrink)

This article explores the various ethical and legal limitations faced by researchers studying extreme or ‘ shock’ pornographies, beginning with generic and disciplinary contexts, and focusing specifically upon the assumption that textual analysis unproblematically justifies certain pornographies, while legal contexts utilize a prohibitive gaze. Are our academic freedoms of speech endangered by legislations that restrict our access to non-mainstream images, forcing them further into taboo locales? If so, is the ideological normalization of sexuality inextricable from our research methodologies? Simultaneously, can (...) we justify researchers being allowed access to materials that are not deemed suitable for general consumption, which may further bolster normalized hierarchies of class-privilege and cultural capital? (shrink)

Abstract Background The first live birth following the use of a new reproductive technique, maternal spindle transfer (MST), which is a mitochondrial replacement technique (MRT), was accomplished by dividing the execution of the MST procedure between two countries, the USA and Mexico. This was done in order to avoid US legal restrictions on this technique. -/- Sources of data Academic articles, news articles, documents obtained through freedom of information requests, laws, regulations and national reports. -/- Areas of agreement MRTs (...) are new reproductive techniques that present novel ethical and legal challenges, since genetic material from three people is employed to create a child. -/- Areas of controversy Could the first MST procedure that culminated in a live birth negatively impact reproductive medicine in Mexico? -/- Growing points The USA and Mexico need specific and clear legislation on MRTs, in order for such techniques not to be governed by prior existing legislation on assisted reproduction that is inadequate for dealing with the new challenges that these techniques present. -/- Areas timely for developing research There is a pressing need for work to be done on the international governance of new reproductive techniques. (shrink)

Self-authorship has been established as the basis of an influential liberal principle of legislation and public policy. Being the author of one’s own life is a significant component of one’s own well-being, and therefore is better understood from the viewpoint of the person whose life it is. However, most philosophical accounts, including Raz’s conception of self-authorship, rely on general and abstract principles rather than specific, individual psychological properties of the person whose life it is. We elaborate on the principles (...) of self-authorship on the basis of self-determination theory, an empirically based psychological theory that has been at the forefront of the study of autonomy and self-authorship for more than 45 years. Our account transcends distinctions between positive and negative freedom and attempts to pinpoint the exact properties of self-authorship within the psychological processes of intrinsic motivation and internalization. If a primary objective of public policy is to support self-authorship, then it should be devised on the basis of how intrinsic motivation and internalization can be properly supported. Self-determination theory identifies three basic psychological needs: autonomy, competence, and relatedness. The satisfaction of these needs is associated with the support and growth of intrinsic tendencies and the advancement of well-being. Through this analysis, we can properly evaluate the significance of rationality, basic goods, and the availability of options to self-authorship. Implications for law and policy are discussed with an emphasis on legal paternalism and what many theorists call “liberal perfectionism,” that is, the non-coercive support and promotion of the good life. (shrink)

This paper offers a critical examination of two recent American Supreme Court verdicts, Masterpiece Cake Shop v Colorado Civil Rights Commission and Trump v Hawaii. In Masterpiece the Court ruled against the state of Colorado on grounds that religious bias on the part of state officials undermines government’s authority to enforce a policy that might otherwise be constitutional. In Trump the Court ruled in favor of an executive order severely restricting immigration from seven countries, five of which are Muslim majority. (...) Both verdicts raise important issues concerning fairness and religious freedom. After examining some of the central legal issues in these verdicts I offer a critical assessment of the legal arguments, focusing on how political value judgments played a crucial role in determining the legal outcomes. (shrink)

This paper addresses the issue of the legal status of non-human animals and the possibility of changing it from the status of things or property to the status of non-things, or better, sentient beings. Key arguments for the change of their status are discussed, including the argument from marginal cases, as well as scientific evidence indicating that many animals are sentient beings. Two ways of initiating such changes seem most promising: legislation, i.e. modification of the civil codes, and litigation, (...) i.e. filing lawsuits on behalf of individual animals. It is argued that legislative changes are necessary for moving animals out of the legal category of things and into the category of sentient beings that can bear rights. On the other hand, litigation could bring about more radical change of the legal status of some animals. (shrink)

This paper addresses the issue of the moral standing of nonhuman animals and their moral and legal rights. First of all, two most prominent views arguing for moral significance of animals are discussed. Peter Singer’s utilitarian view is that animals are sentient beings and therefore deserve equal consideration of their interests. Next, Tom Regan’s standpoint is that many animals have inherent value as experiencing subjects of a life, and consequently an equal right to be treated with respect. This is followed (...) by a discussion about legislation and legal practice in our country and abroad. Finally, it is argued that animals should have at least some basic rights guaranteed by the law. (shrink)

Charles Sanders Peirce and John Dewey’s thinking on universities, their function, and what is required in support of that function was deeply influenced by University of Berlin founder Wilhelm von Humboldt’s reform of the Prussian educational system. This chapter traces that influence and describes Dewey’s role as one of the founders of the modern American conception of academic freedom. It concludes with a consideration of threats posed to universities and academic freedom by authoritarianism, and possible responses to those (...) threats offered by Peirce and Dewey. (shrink)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The conclusion contains an application (...) of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

The idea that human beings are intellectually self-governing plays two roles in free-speech theory. First, this idea is frequently called upon as part of the justification for free speech. Second, it plays a role in guiding the translation of free-speech principles into legal policy by underwriting the ascriptive framework through which responsibility for certain kinds of speech harms can be ascribed. After mapping out these relations, I ask what becomes of them once we acknowledge certain very general and profound limitations (...) in people's capacity for intellectual self-governance. I argue that acknowledging these limitations drastically undermines the putative justifications for free speech of the type that I identify in the first part of the paper. I then show how we can reformulate an account of intellectual and doxastic responsibility on which we may still be held responsible for what we think or believe even though we lack agent-causal capacities in our thinking and believing. Then, in light of this ascriptive account of intellectual responsibility, I show how the key ideahave minds of their owncan (and should) still play a significant role in guiding the legislative outworkings of free speech. (shrink)

In this article, I analyse the legal practice of Finnish legislative emergency preparation and its principles. In approaching the principles of legislative emergency preparation, a distinction is made between the role that law takes in promoting the resilience of society and the resilience of the legal system itself. By differentiating societal and legal resilience, the article approaches legislative emergency preparation as something that includes both forms of resilience and objectives specific to them. My research question concerns how recent Finnish (...) class='Hi'>legislation on responding and preventing hybrid threats affects the balance between these two types of objectives. To approach this phenomenon, I define two temporal principles of emergency governance: the temporal limits of the state of emergency and the temporal distinctiveness of the state of normalcy and emergency. I argue that recent legislation, in which concerns of societal resilience tend to enjoy preference, contradict these two temporal principles. (shrink)

Introduction. Higher education plays a particularly important role in the development of a country. The goal of the article is to describe the development of concepts about education in general and higher education in particular to explain the role of education in social life. Humboldt sees higher education as a process toward freedom and the search for true truth. Humboldt's philosophy of higher education is an indispensable requirement in the context of people struggling to escape the influence of the (...) state and church forces. The purpose is to find out the content and principles of higher education, especially meaningful suggestions for building an autonomous education in Vietnam today. Materials and Methods. The article uses materialist dialectic to analyze Humboldt's philosophy of higher education. In addition, the article also uses methods of analysis, synthesis, comparison and contrast to clarify views on education in the history of human thought from ancient, medieval, modern and modern times, from which to draw the basic contents and principles in the philosophy of higher education of Humboldt. Results and Discussion. Humboldt is the founder of the University of Berlin - known as the mother of modern universities. It is a new university model based on the philosophy of upholding freedom in learning and teaching, upholding the scientific spirit to seek and discover the truth, and at the same time, combining teaching with scientific research. His liberal education philosophy has contributed to affirming the strength and position of universities. He criticized state intervention in university institutions. Based on the anthropological foundation of emphasizing human diversity, Humboldt's higher education philosophy is truly liberating when it comes to bold views. Humboldt believes that a university is a pure place of science and research, so it is not influenced by any outside force, even from the state. A university is where academic freedom, scientific freedom and other autonomy are guaranteed so that the institution can run smoothly. Universities must have unity between research and teaching. However, Humboldt's philosophy of higher education still contains many issues that need to be considered thoroughly. Specifically, the promotion of internal self-determination requires financial autonomy while the state's investment capital in universities is still quite large; Calling for education to be privatized is still inadequate. The elitist spirit in the Humboldt model is no longer fully relevant in the context of a market economy that tends to lead to the pursuit of targets, which are often related to quality. Practical significance. Humboldt's liberal philosophy of higher education has a strong influence, dominates and becomes a reality in many countries with advanced education. For Vietnam, Humboldt's higher education philosophy is a meaningful suggestion to build an autonomous education under the country's socio-historical conditions. (shrink)

The challenge posed by legal indeterminacy to legal legitimacy has generally been considered from points of view internal to the law and its application. But what becomes of legal legitimacy when the legal status of a given norm is itself a matter of contestation? This article, the first extended scholarly treatment of the International Holocaust Remembrance Alliance (IHRA)’s new definition of antisemitism, pursues this question by examining recent applications of the IHRA definition within the UK following its adoption by the (...) British government in 2016. Instead of focusing on this definition’s substantive content, I show how the document reaches beyond its self-described status as a “non-legally binding working definition” and comes to function as what I call a quasi-law, in which capacity it exercises the de facto authority of the law, without having acquired legal legitimacy. Broadly, this work elucidates the role of speech codes in restricting freedom of expression within liberal states. (shrink)

The debate on human destiny and its relationship to freedom, responsibility, legality and morality is an ongoing discussion. The concept of destiny especially in Western philosophy depicts a static and unchanging idea that is causal to success or failure in the lives of individuals. Perhaps because of the culture of writing, destiny is seen as represented in black and white ink such that once written, it cannot be erased unlike the culture of oral expressions. Whereas Yoruba account of destiny (...) depicts a possibility of erasing or recanting what is already given prenatally, many scholars have laughed over this or term Yoruba idea as purely metaphorical and inconsistent in expression. The aim of this paper is to argue that the Yoruba idea of destiny is one of the most consistent ideas with the reality before us. It is an all encompassing thesis that bridge the gap between theory and practice and by extension the relationship between ought (morality) and what is (legality). This aim will be achieved by explaining the relationship between the prenatally received destiny and natal active destiny. This is necessary due to our finding that the Western idea of destiny only sees destiny as individualistic without a consideration of collective destiny or social aspect of destiny where different destinies interact and consequently makes social group or government liable for some individual actions. We conclude that Yoruba idea of destiny is consistent with why individuals and societies are responsible for some failures or successes. Our finding embodies the reason why both government and societies can be held responsible for social and personal actions. (shrink)

Induced abortion continues to be a subject of ethical and moral debates, with the hope that reaching an agreement on what is deemed morally permissible will guide how the society ought to respond by legislating appropriate legal guidelines. The aim of this essay is to examine who constitutes moral privileges in society and more specifically, the criterion on which membership in the moral community is granted. In this paper, I will argue that membership to the human race is not in (...) itself a well supported proposition for accessing moral privileges, but rather, there must be a criterion which forms the basis of this differential treatment. I will endeavour to show that whatever this criterion is set to be, there will be a stage during pregnancy where the fetus will lack that attribute. It is by this deductive reasoning I will demonstrate that terminating pregnancy, before the fetus fulfills the criterion required for gaining moral privileges, is morally permissible. Holding any philosophical position on the debate inherits the burden to reason how that view will be translated in determining the legal status of abortion. For this, I will demonstrate how it follows that different rational individuals can have varying criterion for determining access to moral community, all of which must be respected by the legal practice. The only way to legally respect these gradation of criteria, and by extension the individual who sets them, is by making all cases of abortion legally permissible. (shrink)

Freedom, liberty and rights are terms that long have suffered from vagueness that allows a host of differing interpretations, most of them ideological and overly simplistic. Good, serious modeling descriptions of those terms would not overlook the necessary complexity involved in these social interactions. MacCallum’s idea of (political and social) triadic freedom is here extended to include resources, ability, externalities, benefits to the exerciser, and reasons for non-interference. Interference is described as a subset of freedoms with significant externalities. (...) A right is then described as a compound of a freedom protected by interferences. This provides a basis for the analysis of the game-theoretic economics of rights and when they will be produced. (shrink)

It cannot be overstated that in recent times the gravity and complexity of irregular maritime migration have triggered concerns and debates in the academic domains of International Relations and International Law. The article examines how states’ compliance with, and enforcement of, international law and legal norms would tackle the challenges of irregular migration in the Indian Ocean region. The legislative and policy challenges regarding irregular migration can be analyzed under two segments. First, there is a lack of comprehensive discussion about (...) the sending and the receiving states’ commitments (regarding irregular migrants) to international law and legal norms. Secondly, deficit of comparative analysis to show how the littoral states comply with international law norms on migration and refugee influx. Such analysis from multiple perspectives would be helpful to get insights and make policy recommendations about how effectively international law norms could be enforced through national legislation and policy framework. (shrink)

In this article, I build on my recent conceptions of law as poetry and of justice as dance by articulating three new conceptions of the relationship between law and justice. In the first, “poetry-based justice”, justice consists of a rigid choreography to a kind of musical recitation of the law’s poetry. In the second, “dancing-based law”, justice consists of spontaneous, freely improvised movement patterns that the poetry of the law tries to capture in a kind of musical notation. And in (...) the third, “reciprocal-legal justice”, justice and law consist of a reciprocally determining artistic collaboration between the democratic dancing masses and the aristocratic poetising elites. Given that each of these predominates in one of three types of community, I then present a reclassification of right-leaning, centrist and leftist societies as dominated by “literalist”, “kinetic” and “mutualist” communities (respectively), and offer suggestions for legislators and activists working in each type. In conclusion, law and justice, qua poetry and dance, become more flexible, inclusive and open to creative improvising and collaboration, a new form that I name, after Astraea, Greek goddess of divine justice, “astral legal justice”. (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper (...) perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

Recent developments in the field of forensic medicine and the judicial practice are both factors influencing considerably toward an increasing role of toxicologists in court hearings and litigation processes. The role of forensic toxicologist has been until a few decennia before a prerogative of the medico-legal specialists, but meanwhile a subspecialty of the general toxicology seems to have been created. Vis-à-vis the increasing presence of toxicologists in penal procedures of poisoning and intoxications, Albanian courts have created their own precedents and (...) bylaws, regulating the presence, the opinion taking, and the relative importance such an expert opinion will have on the final sentence. Due to a multiplicity of factors, legal terminology with regard to drugs of abuse needs to be revised and parallel to such a revision a better defining of the role of expert toxicologist as a collector and interpreter of the scientific proofs seems necessary. Overlapping competencies with judicial bodies and confusing legislative measures will do nothing else but complicate issues that should be and can be easily resolved, through simple and appropriate interventions at different levels. (shrink)

Recent years have illustrated how the reproductive realm is continuously drawing the attention of medical and legal experts worldwide. The availability of technological services to facilitate reproduction has led to serious concerns over the right to reproduce, which no longer is determined as a private/personal matter. The growing technological options do implicate fundamental questions about human dignity and social welfare. There has been an increased demand for determining (a) the rights of prisoners, unmarried and homosexuals to such services, (b) concerns (...) over child’s information and health needs, (c) claims for wrongful birth and wrongful life, (d) the role of donors and physicians, (e) posthumous reproduction etc. In addition, the role of national and international law has been emphasized for an efficient system of functioning and delivery. This paper is an attempt to explore the pressing claims to reproductive choices, coupled with a marked increase in demand for legislative intervention in India. (shrink)

Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this paper, we advance and defend an alternative realist conception of legislative intent: the Rational Unity Account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view (...) is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know. (shrink)

In recent decades, the intertwining ideas of self-determination and well-being have received tremendous support in bioethics. Discussions regarding self-determination, or autonomy, often focus on two dimensions—the capacity of the patient and the freedom from external coercion. The practice of obtaining informed consent, for example, has become a standard procedure in therapeutic and research medicine. On the surface, it appears that patients now have more opportunities to exercise their self-determination than ever. Nonetheless, discussions of patient autonomy in the bioethics literature, (...) which focus on individual patients making particular decisions, neglect the social structure within which health-care decisions are made. Looking through the lens of disability and informed by the feminist conception of relational autonomy, this essay argues that the issue of autonomy is much more complex than the individualist model suggests. The social system and the ableist ideology impose various forms of pressure or oppressive power that can affect people’s ability to choose according to their value system. Even if such powers are not directly coercive, they influence potential parents’ decisions indirectly—they structure their alternatives in such a way that certain options are never considered as viable and other decisions must be made. This paper argues that, instead of only focusing on the individual act of decision-making, we need to pay attention to the social structure that frames people’s decision. (shrink)

In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that (...) the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes. The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes. (shrink)

Langdellian “science” and its “formalism” ignore ways form permits and even creates freedom of choice. For example, as Wordsworth notes, though the weaver is restricted by what his form of loom can weave, the weaver may nonetheless choose what and how he weaves. Furthermore, the loom creates weaving possibilities that do not exist without it. Such freedom alongside form is often lost on lawyers, judges, and teachers trained primarily in Langdellian redacted appellate cases where “facts” and other framed (...) matters often wrongly appear as simply given. Similarly, in the context of their redacted appellate cases, many current students may only see constraint in IRAC (Issue-Rule-Application-Conclusion) and other thought forms rather than the fastidious freedoms such forms both provide and create. -/- Overlooking such freedoms is not only misleading in itself. It also misses the need to study how such freedoms are and should be exercised. When facts are simply presented as “given” and strategic and other choices go unrecorded and unnoticed in redacted appellate opinions, no thorough analysis of these overlooked subjects can occur. This is extremely troubling since such overlooked subjects are at the very heart of the lawyer’s craft. -/- Attempting to remedy such Langdellian shortcomings, this article explores, among other things, five basic levels of thought and the framing choices in such levels of thought: references, issues, rules, application of rules, and conclusions. Though often merely taken as “given” in redacted appellate opinions, a good grasp of reference assures that parties are in fact talking about the same matter or matters (the “reference”). It also increases the likelihood of ascertaining and properly framing all the relevant “facts” in a manner reasonably and ethically consistent with a client’s real interests. Similarly, focusing on flexibility of issue framing both brings necessary focus on what is important in the reference and, to the extent reasonable and ethical, again increases the likelihood of frames most consistent with a client’s real interests. A good grasp of applicable rules and how to frame and apply them on its face increases the likelihood of representing a client well. A good grasp of conclusions and how to frame and hedge them also does the same. -/- Grasping the multilevel complexities in play at these multiple levels pushes us beyond briefing redacted appellate cases to the much more difficult and stimulating work of exploring and teaching good legal thought at all its levels. Legal writing professors are pioneers in this regard and others in the academy can learn much from them. -/- Keywords: RIRAC, IRAC, CREAC, Reference, Issue, Analysis, Rule, Application, Conclusion, Frame, Framing, Metaphor, Concept, Category, Legal Thought, Legal Analysis, Rhetoric, Langdell, Wordsworth, Form, Formalism, Sonnet, Text. (shrink)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 / 3. Timely Issues of (...) Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

What is freedom? The contemporary history of humanity is a quest for enduring human freedom over oppression, subjugation and tyranny of many forms. In that pursuit, many wars have been fought, and millions of lives have perished, and many ideologies were born. In simple terms, freedom to the ability to act or change without being constrained. Freedom manifests when obstacles to initiate change or to express free will are removed. From a needs perspective, freedom is (...) when an individual can pursue his or her needs, wants and aspirations freely. However, freedom may not be absolute; some constraints or caveats can manifest from personal ethics and morality, family, cultural, faith systems and governance structures. It may also differ from one society to another. From a religious or philosophical perspective, freedom is often associated with liberty and autonomy, and only exist in a human realm. This type of freedom is also known as political freedom expressed in the forms of human rights and civil liberties, which are often legislated and protected by laws. Nonetheless, the limits and depths of political freedoms such as freedom of choice, assembly, association, and freedom of expression are often debated and sometimes challenged through modern history. (shrink)

The Responsibility of Freedom of Speech and the Role of Media in Propagating Correct Knowledge -/- In modern societies, freedom of speech is often heralded as a fundamental right, allowing individuals to express their thoughts and opinions freely. However, the concept of absolute freedom of speech is not without its flaws. When viewed through the lens of natural laws, including the universal law of balance, the unchecked exercise of speech can lead to societal imbalances. It is essential (...) to recognize that while individuals should be allowed to voice their opinions, this freedom comes with the responsibility to ensure that speech contributes positively to societal harmony, personal growth, and the well-being of others. This responsibility extends beyond individual action and applies to all forms of media, which play a significant role in shaping public discourse and the flow of information. -/- The Concept of Freedom of Speech and its Pitfalls -/- Freedom of speech, in its ideal form, allows individuals to express their ideas and beliefs without fear of censorship or retribution. This principle is grounded in the belief that diverse viewpoints contribute to the flourishing of democratic societies. However, the unrestricted nature of this freedom can also lead to unintended consequences. When individuals or groups disseminate harmful misinformation, spread hate speech, or manipulate public sentiment for selfish gain, the foundational balance within society is disrupted. The unchecked expression of falsehoods or inflammatory rhetoric can create divisions, incite violence, or foster ignorance—outcomes that are contrary to the well-being of individuals and the harmony of society. -/- The spreading of false beliefs, misinformation, or gossip can be especially damaging. Such behavior not only distorts reality but also erodes trust within communities, making it more difficult for people to distinguish between truth and falsehood. False beliefs can lead to irrational fears, biases, or hatred, and when spread, they contribute to the further fragmentation of societies. In the age of digital media, these harmful narratives can quickly go viral, reaching vast audiences before they can be corrected, amplifying their negative impact. -/- From the perspective of the universal law of balance, the free exchange of ideas must be aligned with the greater good, ensuring that speech contributes to constructive discourse and societal progress. Words are powerful, and their impact on both the individual and collective mind can shape reality in profound ways. Therefore, freedom of speech should not be seen as an absolute right devoid of responsibility. Rather, it must be accompanied by an awareness of its potential effects and a commitment to using it to foster understanding, unity, and truth. -/- The Role of Media In Shaping Knowledge -/- Media, whether traditional or digital, plays a central role in how information is disseminated to the public. In today’s interconnected world, media outlets, including news organizations, social media platforms, and content creators, have an unprecedented influence on shaping public opinion. Given this influence, media must be held to high standards of responsibility, as it is the primary vehicle through which society consumes knowledge. -/- The responsibility of the media extends beyond merely reporting facts; it includes the duty to ensure the accuracy, reliability, and relevance of the information shared. Media outlets must prioritize the dissemination of truth, fact-check their sources, and avoid sensationalism that can distort public perception. Misinformation, especially when propagated through powerful media channels, can have lasting consequences on public trust, societal stability, and personal decision-making. The rapid spread of gossip, rumors, or fake news can lead to unnecessary panic, conflict, or even harm, demonstrating the real dangers of unchecked speech. -/- In the age of information overload, the role of the media is to sift through the noise and present knowledge in a balanced, accessible, and responsible manner. This involves not only reporting on events but also offering analysis and context that help the public understand the deeper implications of the information being shared. Media must act as a filter, ensuring that the knowledge people receive aligns with reality, helps individuals make informed decisions, and contributes to the greater good. -/- The Need for Media Literacy and Accountability -/- As media consumers, individuals must also take responsibility for their engagement with information. Media literacy—the ability to critically analyze, evaluate, and interpret media content—is a crucial skill in today’s world. With the proliferation of social media platforms, where misinformation can spread rapidly, it is more important than ever for individuals to be discerning about the sources of information they trust. Education systems worldwide must prioritize media literacy as part of their curricula, teaching students how to identify credible sources, distinguish between fact and opinion, and recognize the potential for manipulation in media messages. -/- For the youth, empowering them to critically engage with media is especially vital. With the rise of social media and peer-to-peer communication, young people are particularly susceptible to the influence of misinformation and gossip. The spread of rumors or false information among peer groups can have serious social consequences, including damaged reputations, broken friendships, and even bullying. It is essential to foster a sense of personal responsibility in the youth by teaching them the importance of verifying information before sharing it and the harmful effects of spreading unverified or negative content. -/- Youth should be empowered to practice empathy and discernment when interacting with information. Schools, families, and communities can collaborate to teach the younger generation about the consequences of gossip and misinformation—how they can harm individuals, societies, and even themselves. Encouraging open dialogue about the ethical use of information and the value of truth can help instill the importance of responsible speech in the youth. By creating a culture that values truth over sensationalism and empathy over gossip, we can work toward a more informed and balanced society. -/- At the same time, media organizations must be held accountable for the content they produce and share. This accountability requires strong ethical guidelines and transparency, ensuring that media outlets prioritize public welfare over profits or political agendas. The role of media is not merely to entertain or persuade but to educate, inform, and serve as a reliable source of knowledge. Failure to adhere to these responsibilities can lead to misinformation, polarization, and the erosion of public trust. -/- The Importance of Legal Laws in Preventing the Spread of False Information -/- While personal responsibility and media literacy are essential, legal frameworks also play a crucial role in curbing the spread of false information. In the Philippines, laws like the Cyber Libel Law (Republic Act No. 10175) serve as vital tools for combating online defamation, false information, and harmful content. This law holds individuals accountable for spreading libelous statements or malicious rumors online, providing a legal recourse for those affected by misinformation. -/- Such legal measures are important because they act as deterrents, encouraging individuals and organizations to think carefully before sharing content that could harm others or society at large. Legal laws like the Cyber Libel Law help ensure that the digital space is not misused for malicious purposes, such as spreading false beliefs, gossip, or misinformation that can cause public harm. These laws serve to protect individuals’ reputations and prevent the viral spread of content that could lead to social unrest or personal injury. -/- Furthermore, legal frameworks can also push media outlets and digital platforms to take more proactive measures in monitoring and controlling the spread of misinformation. By enforcing penalties for the dissemination of harmful content, governments can encourage media organizations and platforms to adopt stricter content policies and invest in fact-checking mechanisms. Legal safeguards not only protect individuals but also promote accountability, ensuring that those responsible for the creation and dissemination of false information are held liable. -/- While freedom of speech is crucial, the presence of legal frameworks ensures that this right is not abused to the detriment of others. These laws help strike a balance between protecting the right to express opinions and maintaining societal harmony by preventing the spread of falsehoods and malicious gossip. -/- The Balance Between Freedom of Speech and Responsibility -/- In light of the universal law of balance, freedom of speech must be exercised with a sense of duty. The right to express oneself must not come at the expense of societal harmony or the well-being of others. Media, as a conduit for knowledge and discourse, must prioritize accuracy, accountability, and ethical standards in its operations. This includes ensuring that the information they share is balanced, relevant, and rooted in truth. -/- At the same time, it is important to recognize that all individuals, including media practitioners, are part of a larger system. Every word spoken, every article written, and every broadcast made contributes to the collective reality we all experience. The impact of these actions ripples out into society, influencing minds, shaping behaviors, and creating a feedback loop that can either strengthen or weaken the fabric of society. By embracing responsibility in speech and media practices, we can help ensure that our collective decisions align with the natural balance of the world around us, fostering a society that values truth, understanding, and mutual respect. -/- Conclusion -/- The concept of freedom of speech, while important, cannot be viewed as a blanket entitlement devoid of responsibility. The power of speech, when unchecked, can disrupt the natural balance of society, leading to harm, division, and ignorance. Media, as a central vehicle for disseminating knowledge, holds a critical responsibility in ensuring that the information shared is accurate, reliable, and serves the greater good. In this context, freedom of speech should be understood as a tool for fostering truth and unity, not as an unregulated license to mislead or divide. -/- Legal frameworks, such as the Cyber Libel Law, provide essential safeguards, holding individuals accountable for the harm caused by false information. By aligning speech and media practices with the principles of balance, responsibility, and truth, society can move toward a more informed, harmonious, and just future. Moreover, empowering the youth to become responsible consumers and sharers of information is essential in cultivating a generation that values truth, empathy, and ethical communication, ultimately promoting a balanced and well-informed society. -/- . (shrink)

Despite decades of contentions between moral legalists and legal positivists about the place of morality in law, moral law has vehemently stood out as the end of history. The scientific experiment has despondently failed to logically evict the moral law from the jurisprudential discourse. This research article posits that moral law is the End of History as far jurisprudential evolution is concerned. It argues that the mechanization of law through the positivistic experiment is a moral debacle dented with logical inconsistencies (...) and insurmountable fallacies. It thus uses the inseparability thesis to demonstrate the pivotality of moral law in every positive jurisprudence superstructure. It contends that law appeals to our moral sensibilities because it pre-supposes a conscience in the law giver, the law enforcer and the citizen who is supposed to abide by the law. This ought necessity therefore makes the trio morally credible to legislate, enforce the law and be legally bound by the principles and precincts established by the law. (shrink)

The following four theses all have some intuitive appeal: (I) There are valid norms. (II) A norm is valid only if justified by a valid norm. (III) Justification, on the class of norms, has an irreflexive proper ancestral. (IV) There is no infinite sequence of valid norms each of which is justified by its successor. However, at least one must be false, for (I)--(III) together entail the denial of (IV). There is thus a conflict between intuition and logical possibility. This (...) paper, after distinguishing various conceptions of a norm, of validity and of justification, argues for the following position. (I) is true. (II) is false for legislative justification and true for epistemic justification. (III) is true for legislative and false for epistemic justification. (IV) is true for legislative justification; for epistemic justification (IV) is true or false depending on the conception taken of a norm. Our intuition in favour of (II) must therefore be abandoned where justification is conceived legislatively. Our intuition in favour of (III) must be abandoned, and our intuition in favour of (IV) qualified, where justification is conceived epistemically. (shrink)

For Hegel, personhood is developed primarily through the possession, ownership, and exchange of property. Property is crucial for individuals to experience freedom as persons and for the existence of Sittlichkeit, or ethical life within a community. The free exchange of property serves to develop individual personalities by mediating our intersubjectivity between one another, whereby we share another’s subjective experience of the object by recognizing their will in it and respecting their ownership of it. This free exchange is grounded the (...) abstract right to property which is defined by the liberal institution of private property. Like all legal/juridical rights, the abstract property right and its related institution are productions of the state, which can also claim priority over them. This prioritization reveals the dialectic inherent in the both the conception and exercise of the right, in which the private right to property at the level of civil society confronts the public right of the state, resulting in both the preservation and uplifting of the right, and, at the same time, its cancellation or annihilation. (shrink)

In this chapter, I criticize some common approaches to conceptualizing property, and I propose instead a more normatively attuned, historically situated framework for thinking about what it means to call something mine. Whereas many legal theorists are busy constructing elaborate doctrines for justifying the absolute supremacy of property rights (and, consequently, normalizing the status quo distribution of wealth), I am more interested in understanding the social bonds, normative expectations, and material constraints produced in property relations. I do this with the (...) help of Kant, Hegel, and Marx, each of whom placed property in relation to the development and denial of human freedom. But first, I discuss my shirt. (shrink)

Adorno and Levinas argue from distinct yet intersecting perspectives that there are pathological forms of freedom, formed by systems of power and economic exchange, which legitimate the neglect, exploitation and domination of others. In this paper, I examine how the works of Adorno and Levinas assist in diagnosing the aporias of liberty in contemporary capitalist societies by providing critical models and strategies for confronting present discourses and systems of freedom that perpetuate unfreedom such as those ideologically expressed in (...) possessive individualist and libertarian conceptions of freedom. (shrink)

In this short article, my aim is to introduce readers to some debates about religious freedom and constitutional law in the United States. I highlight a few of the enduring questions debated by political philosophers and legal scholars. For example, does the Constitution require special religious exemptions for citizens whose religious convictions put them at odds with otherwise neutral and legitimate state pol- icy? Should the Constitution be interpreted as supporting a strict secularism or a multicultural egalitarian liberal position? (...) What are the limits to religious freedom? To illustrate how these and related questions are debated I consider some recent work on religious freedom jurisprudence in the United States. (shrink)

This paper examines the debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Three primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered), the actual participation of AI in socio-digital institutions (instrumental vs. non-instrumental), and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader attribution of the legal entitlements to AI entities and periods of scepticism narrowing such entitlements. Additional influences include (...) regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory frameworks, particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own, although some authors suggest that the courts can do so. For this to happen, AI systems would first need to prove de facto legitimacy through sustained participation within socio-digital institutions. The chapter concludes by assessing near- and long-term prospects for legal personification, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

As the title of the article suggests, “The Burqa Ban”: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations, the authors embark on a factually investigative as well as a reflective response. More precisely, they use The 2018 Danish “Burqa Ban”: Joining a European Trend and Sending a National Message (published as a concurrent but separate article in this issue of INTERNATIONAL STUDIES JOURNAL) as a platform for further analysis and discussion of different perspectives. These include (...) case-law at the international level while focusing attention on recent rulings and judicial reasoning by the ECtHR and the ECJ; critical thought-experiments in religion, morality, human rights, and the democratic public space; a contextualized account of burqa-wearing interventions by federal and state governments and, moreover, various courts in the United States; and philosophical commentary and, in some instances, criticism of the Danish and/or European (French, etc.) approach. The different contributions have different aims. The section on case-law at the international level reports on those central judgments that, in effect, helped to pave the path for the Kingdom of Denmark’s burqa ban. Concerning the concurring judges at the ECtHR, the opinions served to uphold a preexisting ban and to grant a wide margin of appreciation to the national authorities, thereby limiting the Court’s own review. -/- As regards to the ECJ, the legality of company rules that contain a policy of neutrality for the workplace was examined, with a similar outcome. The authors who discuss religion, morality, human rights and the democratic public space are endeavoring to, respectively, appeal to ethics as a testing stone for law and to both challenge and address several forms of “expressivist worry” in connection with face veils. In doing so, the authors ask a number of thought-provoking questions that hopefully will inspire public policymakers to careful analysis. While the section that is devoted to American perspectives highlights a comprehensive survey of political and legal responses to, in particular, full-face veils like the burqa, the relevant author also incorporates public perceptions and, in the course of examining these, draws a parallel to “the fate” of the hoodie. The constitutionality of burqa-wearing in America, so it also appears, is partially an open question, but differentiating between religious, political, or personal reasons is a de jure premise. Given that the Danish legislators who drafted law L 219 to ban burqa-wearing in public places rely on a reference to political Islam, they relegate religious and personal reasons to the private domain, thereby also adopting secularism as a premise. This is explored in the last author response of the article, more precisely, in an account of the underlying materialism that, in turn, is applied to Muslim women. If policymakers and legislators engaged in Thinking Things Through exercises, they could, as a minimum, avoid law-making strategies that are not in the spirit of the theory they themselves invoke, albeit tacitly. While the aim of, as it were, arresting culturally self-contradicting legislators is unique for the section in question, all the authors who contribute to the joint research project have one end-goal in common, namely to inform about important perspectives while at the same time opening up for parameters for (more) fruitful, constructive and (if need be) critical debate in the future. With this in mind, four recommendations are presented by the research director for the project. Legally, politically, socially and culturally, conflict-resolution should not translate the relationship between rulers and the ruled into a separation ideology, an instance of controllers versus the controlled. All things being equal, that is the objective limit for a democratic society. (shrink)

This chapter offers a plea for the media to reframe its coverage of campus controversies from free expression to academic freedom. These freedoms are entwined, but distinct. Freedom of expression is extended to all persons with no expectation of quality control, apart from legal prohibitions against defamation, threats, etc. By contrast, academic freedom is a cluster of freedoms afforded to scholarly personnel for a particular purpose – namely, the pursuit of universities’ academic mission to seek truth and (...) advance understanding in the service of society. An academic freedom framing better reflects the distinctive social purpose around which universities are organized, as well as universities’ duty of care to employees and students. While universities have a legal and moral duty of care to all employees and students, the unjust, exclusionary past and present of higher education arguably makes that duty particularly acute in the case of equity-deserving (e.g., racialized, Indigenous, disabled or 2SLGBTQ+) people. Finally, academic freedom framing for campus media stories is less monolithic than free expression framing, allowing for a more nuanced understanding of campus controversies while keeping universities accountable to the public they serve. In this chapter, I survey three very different campus controversies at a single Canadian university, and the media response each received. I show how an academic freedom frame for those stories would have produced better reportage while reducing opportunities for bad actors to manipulate both universities and the media. At the end of the day, the real crisis at universities isn’t the cancellation of ill-judged events that were never a part of the academic mission; it is the ongoing erosion of academic freedom. (shrink)

Freedom as a natural right, the importance of consent, defending the idea that government should be in the hands of the most virtuous and reflective citizens, denouncing patronage, the need to link individual and political freedom ? These are some of the characteristics of La Boétie's doctrine that I believe place him within the tradition that Quentin Skinner calls the neo-Roman conception of civil liberty. Of course, La Boétie did not write a positive defence of the rule of (...) law, as Livy did in his History of Rome and as the English republicans do, but the Discourse can easily be read as a legal plea condemning absolute monarchy and any kind of arbitrary regime. (shrink)

Many of the Swiss Cantons have regulated the relations between church and state by establishing, in their public law, corporations at the levels of the municipality and of the canton. The role and the rights of these corporations, especially obligatory membership in them, is the object of ongoing political and legal debate. Both on the side of the courts and of the church, the present system has come under scrutiny, while the corporation representatives and also a majority of the population (...) seem intent on maintaining it. This paper explains and examines the presently valid church-state relations, focusing on the Canton of Zurich, and looks at the suggestions for reform elaborated by an experts’ commission instituted by the Conference of Swiss Bishops. In conclusion, it presents some more general reflections on the challenges to individual and corporative religious freedom today, in Switzerland and beyond. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...) and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

Much of the debate about post-secularism has presumed a background of Western countries and the sort of statutory law that legislatures should make, and how they should make it, in the light of residents’ religious attitudes and practices. In this chapter I address a fresh context, namely, that of South Africa and the way that courts have interpreted, and should interpret, law in the face of African traditional religions. Specifically, I explicate the fact that, by South Africa's famously progressive Constitution, (...) religious customs already count as law, and I illustrate how such customary law could work with three court cases related to indigenous African spirituality. Then, I lay out and evaluate the two central arguments that jurists have made in favour of South Africa's Constitutional practice of deeming long-standing religious ways of life to be sources of law. I contend that these influential arguments for customary law, which are substantially individualist, are weak, and also sketch more promising rationales, which invoke more communitarian considerations. My aim is not so much to convince the reader that South Africa’s approach to post-secularism is justified as to identify some argumentative strategies that particularly promise to justify it. (shrink)

This article argues that the aesthetics of the oppressed—a series of artistic practices elaborated by Augusto Boal (1931-2009) that comprises the theatre of the oppressed, the rainbow of desire technique, and legislative theatre—utilizes art in order to resist epistemic injustice and promote democratic freedom.

_One of the strongest arguments against hate speech legislation is the so-called Argument from Political Speech. This argument problematizes the restrictions that might be placed on political opinions or political critique when these opinions are expressed in a way which can be interpreted as ‘hateful’ towards minority groups. One of the strongest free speech scholars opposing hate speech legislation is Ronald Dworkin, who stresses that having restrictions on hate speech is, in fact, illegitimate in a liberal democracy. The (...) right to express oneself freely concerning any political decision is, according to Dworkin, a core democratic principle; it is what self-governance – and hence liberal democracies – are built upon. Dworkin and many other free speech scholars based in the United States see hate speech legislation as a threat to expressing oneself freely and critically. I argue that Dworkin and other US-based free speech scholars tend to overlook actual hate speech legislation in countries where such laws have been implemented and have functioned for decades. Furthermore, I argue that the real threat against political speech lies not in hate speech legislation but rather outside of the law, namely, in private institutions such as universities and museums. Restrictions on political speech in various societal circumstances have been on the rise over the last decades – first and foremost in the US. I analyse why these restrictions on political speech are more widespread in the only Western country without laws against hate speech than they are in countries with implemented hate speech laws._ _Keywords_: political speech, hate speech, hate speech legislation, private institu-tions, universities, USA. (shrink)

Kant is often regarded as one of the founding fathers of modern liberal democracy. His political theory reaches its climax in the ground-breaking work, Perpetual Peace (1795), which sets out the basic framework for a world federation of states united by a system of international law. What is less well known is that two years earlier, in his Religion within the Bounds of Bare Reason (1793/1794), Kant had postulated a very different, explicitly religious path to the politics of peace: he (...) presents the idea of an “ethical community” as a necessary requirement for humanity to become “satisfactory to God”. While many recent scholars have noted the importance of Kant’s concept of the ethical community, few recognize the force of his argument that such a community is possible only if it takes the form of a church; as a result, the precise status of his proposal remains unclear and under-appreciated. He argues in Division One, Section IV, of Religion’s Third Piece that the idea of this community can become a reality only through a “church” that is characterized by four rational requirements: unity, integrity, freedom, and the changeability of all church rules except these four unchangeable marks. Prior to Section IV, Division One portrays this ethical community as having a political form, yet an essentially nonpolitical matter. He compares it with Jewish theocracy, but observes that the latter failed to be an ethical commonwealth because it was explicitly political. Whereas traditional theocracy replaces the political state of nature (which conforms to the law, “might makes right”) with an ethical state of nature (which conforms to the law that I call, “should makes good”), or attempts to synthesize them, non-coercive theocracy transcends this distinction through a new perspective: it unites humanity in a common vision of a divine legislator whose only law is inward, binding church members together like families, through the law of love. Whereas the legal rights supported by democracy and a system of international law can go a long way to prepare for world peace, Kant’s conviction is that it will be ultimately impossible without support from healthy religion. (shrink)

Several European countries are approving legislative reforms moving to a presumed consent system in order to increase organ donation rates. Nevertheless, irrespective of the consent system in force, family's decisional capacity probably causes a greater impact on such rates. In this contribution we have developed a systematic methodology in order to analyse and compare European organ procurement laws, and we clarify the weight given by each European law to relatives' decisional capacity over individual's preferences (expressed or not while alive) regarding (...) the destination of his or her organs after death. In this sense, the results constitute the first comprehensive and comparative legislative mapping on European transplantation laws. (shrink)

Law is a main source of justice in a democratic society, and as such it must send clear and unequivocal messages to its addressees. Therefore, the question of the meaning in the legal vocabulary does not lose its relevance and universality. The present study examines the question of the linguistic significance of legal norms in legal vocabulary, applying an interdisciplinary approach. Joining the thesis that the legislation can be considered as an expression of the legally significant will of the (...) rule-making authority, the legal provisions will be presented as an intentional act. In search of the most appropriate explanatory method, two kinds of theories will be applied in parallel: Paul Grice's theory of linguistic meaning, on the one hand, and some theories with both textualist and intentionalist orientation, on the other. Subsequently, the communicative maxims proposed by Grice will be related to selected normative requirements related to the language of the normative acts. (shrink)

Legislative technique encompasses a system of methods and means associated with the preparation of draft legal acts in the most perfect form in terms of structure and form. In the legislative technique, not only national, but also the established legal practice of foreign countries for hundreds of years is widely used. The special legal means of legislative technique include the following: 1) legal language; 2) legal structures; 3) the procedure for registering a legislative act, the process of lawmaking; 4) systematization (...) of legislation. The legislative process provides for the existence of separate stages leading to the emergence of a new legislative act. And the problem of systematization of legislation and its main components is described in a separate way. (shrink)

Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's (...) argument is based upon two points: Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture. (shrink)

In January 2024, non-consensual deepfakes came to public attention with the spread of AI generated sexually abusive images of Taylor Swift. Although this brought new found energy to the debate on what some call non-consensual synthetic intimate images (i.e. images that use technology such as AI or photoshop to make sexual images of a person without their consent), female celebrities like Swift have had deepfakes like these made of them for years. In 2017, a Reddit user named “deepfakes” posted several (...) videos in which he had used opensource machine learning tools to swap the faces of female celebrities on to the faces of female porn actors, displaying what appeared to be live video footage of the celebrity engaging in sex acts she never engaged in. Since that time, deepfake technology has advanced astronomically. What once were choppy sexualized videos are now nearly flawless videos that can be difficult to distinguish from a real video. According to recent research on deepfakes by Sensity AI, this technology has been used primarily on women to create sexual videos. These women’s sexual autonomy has been co-opted for the purposed of gratifying men’s sexual pleasure, but have also been used in campaigns to delegitimize and humiliate female journalists and politicians. In Canada, civil and criminal legislation has addressed the non-consensual distribution of intimate images, but in only a few provinces – British Columbia, New Brunswick, Prince Edward Island and Saskatchewan – does this offence include altered images that could include deepfakes. This paper explores the evolution of synthetic technology such as AI image generators and Canada’s legal responses to the non-consensual sharing of intimate images. (shrink)