With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper (...) examines the nature and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents. (shrink)

This paper intends to articulate the jurisdictional issue of the Court of International Trade(CIT), particularly dealing with a legal dispute of the Anti-dumping law. While the international trade grows to be marshaled by a new institutional arrangement of WTO dispute settlement system, the role of CIT correspondingly plays a great deal of effect on this area of laws. It is considered that both arbitrating institutions have to drive a reasonable rule over the trade issues. This is (...) particularly so in various viewpoints. The law of USA has influenced significantly over WTO, and its take is fairly greater than other WTO members in economic terms. Under this background, I attempt to probe an attitude of CIT in dealing with jurisdictional issues including the extent of judicial activism and theoretical ground for resolving those issues while providing a comparative articulation to the general doctrine of administrative law. I also point out the significance as well as characteristics of jurisdictional issue in terms of the U. S. legal system, which, I hope, can provide a little guidance to the current Korean jurisprudence. Lastly, I stress the need for judicial reform within Korea as well as more affluent provision of legal counselling, which I think vital to accommodate a rapid development of trade environment. (shrink)

The purpose of the present article is two-fold. First, the article examines the reasons as to why Arab countries do not actively participate in WTO dispute settlement proceedings.17 Trade volume, lack of technical expertise, financial strains, political relations, enforcement, and language problems eachplay a role in Arab countries under-participation and are discussed herein. Second, the article provides possible avenues through which Arab countries can enhance their presence in the WTO dispute settlement process. In the process of (...) examining these issues, the article highlights the case(s) in which Arab countries participated in the WTO dispute settlement system. However, before addressing these issues, the article will briefly discuss the development of the WTO dispute settlement mechanism. (shrink)

The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof underWTOdispute settlement mechanism.

‘Dumping’ is a practice in international trade whereby a product is introduced into the commerce of another country at less than its ‘normal value,’ which might cause or threaten material injury to the domestic industry of the importing country. To address the practice of dumping and provide rules to deal with it, the World Trade Organization (WTO) adopted the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994), known as the Anti-Dumping Agreement (ADA). -/- (...) The ADA sets out anti-dumping investigation procedures that importing countries must follow if they wish to impose anti-dumping measures, which are determined by comparing the normal value and the export price of the goods in question. However, not all countries are treated equally under these arrangements. Countries that are non-market economies (NMEs) are accorded special treatment provided by specific rules, including the option for investigating authorities to resort to surrogate prices in a third country for the purpose of establishing normal value. This application of surrogate prices is referred to as ‘NME treatment’. In the absence of an internationally recognised definition of an NME, each WTO Member has adopted its own definition and/or a list of NMEs. Vietnam, a WTO Member whose economy is moving from being centrally planned to being market-based, is considered an NME by both the United States (US) and the European Union (EU). This research investigates whether the non-market economy status of NMEs such as Vietnam disadvantages exporters in anti-dumping investigations and proceedings. The research analyses legal, procedural and other issues relating to the non-market economy status of NMEs in general and Vietnam in particular, in anti-dumping investigations and proceedings conducted by the US and the EU. The research uses a qualitative methodology design, by which data was collected primarily using desk-based study, supplemented by interviews with anti-dumping experts, Vietnamese exporters and government officials. It involves the examination of international law pertaining to anti-dumping, the US and EU anti-dumping laws and investigation procedures, analysis of the WTO anti-dumping dispute settlement procedures and related jurisprudence, as well as the analysis of Vietnam’s transition to a market economy. -/- The research has found that both the US and EU treat Vietnam as a NME and have developed their own specific methodologies for anti-dumping investigations on exports from Vietnam. Furthermore, it highlights the wide discretion of the US and the EU under their domestic laws in many stages of anti-dumping investigations. -/- The findings also show that the WTO Dispute Settlement Body generally considers the US and the EU practices to be consistent with the ADA provisions. However, certain US and EU practices were found to be inconsistent with the ADA, including ‘zeroing’, limited examination, surrogate country selection, and the imposition of the ‘entity-wide rate.’ Further, by applying these practices, investigating authorities might establish unpredictable normal values that may inflate the estimated dumping margins and ultimately lead to the imposition of a higher than appropriate anti-dumping duty. The analysis concludes that the NME status of countries such as Vietnam disadvantages them when facing claims of dumping. Finally, this thesis provides recommendations for Vietnamese exporters that will serve to improve their competence as defendants/respondents in anti-dumping investigations and proceedings and more effectively demonstrate the degree to which their operations are based on market-based principles. Recommendations are also provided to the Vietnam Government on ways in which it can support Vietnamese exporters in anti-dumping investigations and proceedings. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a (...) specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

The dispute settlement mechanism in FTAs is necessary as they provide means to settle disagreements on interpretation or compliance with treaty obligations. The dispute settlement mechanism help ease tensions among FTA parties and maintain healthy relationships among trading partners. Bashar H. Malkawi.

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can (...) resolve a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

This work establishes that the primary justification for the state is its role as the guarantor of last resort of the personal safety, liberty and property of the citizens. The essay upholds that the state exists fundamentally for the protection of life and property and ensuring the wellbeing of the citizens and unless it performs this basic function it has no reason to exist. The essay equally establishes that no other time since the civil war era has Nigeria's state been (...) seriously engulfed in perennial security challenges than now. It is the stand of this essay that the current trend of violence imprints on the psyche of Nigerians that the government security apparatus is incapable of guaranteeing the security, safety and wellbeing of the people. It is the candid opinion of this essay that the paradox of Nigeria's state security is that instead of the state being a framework of lawful order and the highest source of authority, it now constitutes the greatest threat to itself. The essay submits that peaceful protest is against the ruling elite that has exploited and appropriated the collective patrimony to itself. It substantiates the legality of EndSARS Protest necessitated by the improprieties of the unit of Nigeria Police Force – Special Anti-Robbery Squad (SARS) against human rights violation, extortion, torture brutality and extra-judicial killings by SARS due to sustained years of leadership deficit in Nigeria. The protest though hijacked by hoodlums is a wake-up call for articulation of good leadership and governance in Nigeria. The Essay adopts an expository and critical evaluation method to drive home its aims and objectives. It relies on se. (shrink)

It causes many difficulties for jurisprudence to define the notion of judicial activism. At the very beginning it had rather a journalistic character, but but over time it has become a serious charge against these judges who act on the basis of their vision of what the law ought to be like rather than what it actually is like. On the ground of the polish legal theory the echoes of the dispute about judicial activism are reflected in (...) the discussions about the nature of legal interpretation. Transposing the problem of activism into the problem of interpretation allows the use of analysis tools that were previously unavailable. One of these tools are concepts emerged on the neopragmatist philosophy of Stanley Fish. Fish tries to describe the nature of the interpretation in the context of reader-response criticism and the concept of interpretive communities. Application of Fish's philosophy in the field of legal theory provides constructive conclusions about the concepts of judicial activism and judicial law-making. (shrink)

Free trade agreements are about reducing tariffs, market access in services, protection of intellectual property rights, streamlining customs procedures, trade remedy measures, and dispute settlement mechanism. Equally important if not even more important than these provisions is the designation of rules of origin. Many benefits can be lost if restrictive rules of origin are incorporated. Rules of origin are supposed to be straightforward and easy-to-follow methods used to determine origin of imported goods. The policy question that arises (...) is how to improve trade integration among Arab countries through more effective rules of origin. (shrink)

Fallibilism, as a fundamental aspect of pragmatic epistemology, can be illuminated by a study of law. Before he became a famous American judge, Oliver Wendell Holmes, Jr., along with his friends William James and Charles Sanders Peirce, associated as presumptive members of the Metaphysical Club of Cambridge in the 1870s, recalled as the birthplace of pragmatism. As a young scholar, Holmes advanced a concept of legal fallibilism as incremental community inquiry. In this early work, I suggest that Holmes treats (...) common law cases more like scientific experiments than as deductive applications of already clear rules. Common law rules may be seen as a product of 1) the conflicts that occur in society, 2) the channeling of conflicts into legal disputes, 3) the gradual accumulation of judicial decisions classified into groups, and 4) the development of consensual understanding, expressed in rules and principles, as to how future cases should be classified and decided. This does not involve only lawyers and judges. Especially in controversial cases, it may indirectly involve an entire community. The legal process is seen as an extended intergenerational process of inquiry. It illuminates the relation of thought, expression, and conduct among a community of inquirers, applied to the problems of social ordering. (shrink)

Pardon powers are common but difficult to justify. A pardon power is, roughly, a power that is (a) possessed by a non-judicial official, (b) used to cancel legal liability to a criminal sanction in a particular case without thereby altering the law, and (c) unconstrained by law. So defined, pardon powers seem to be at odds with two constitutional principles. Contrary to the separation of powers, the pardon power gives to someone other than a judge a decisive role (...) in determining criminal liability in particular cases. Contrary to the rule of law, the pardon power is neither constrained nor ruled by law. -/- Here I provide a novel defence of pardon powers, in three steps. First, even an optimal legal code requires suboptimal results in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent that code. Adhering to the code in every gap case is undesirable: while it would avoid suboptimal results, it would create too much unpredictability. Deviating from the code in every gap case is also undesirable: while it would ensure predictability, it would produce too many suboptimal results. The best strategy is to adhere in some cases and to deviate in others, that is, to selectively deviate. The most important thing about selective deviation is that it leads to like cases being treated differently. This is the second step in the argument. Third, pardon powers are an appropriate vehicle for selective deviation. Selective deviation calls for a power that can be used to set aside the code without changing it. It calls for a power that can be used inconsistently. Moreover, it calls for a power that is not in the hands of a body institutionally disposed towards consistency in decision-making, such as the judiciary. That is, it requires a power with features (a)-(c) – a pardon power. -/- This argument overcomes the various objections to pardon powers. Contrary to the objection from the separation of powers, selective deviation is a task better carried out by non-judicial officials. Contrary to the objection from the rule of law, a power of selective deviation must be unconstrained to preserve the law’s guiding function. Overall, the features of pardon powers that seemed to be in tension with the separation of powers and the rule of law turn out to be favoured by those same principles. (shrink)

This report presents the results of a research project which examined how Polish administrative courts exercise discretionary powers when deciding cases related to business activity. When a business enterprise asks the court to review actions taken by administration, judges decide whether an administrative body has used its powers in accordance with the law. The law in this case includes both the relevant statutory regulations but also more general principles originating from other sources, such as the Constitution or European Union law. (...) It is generally accepted that in such cases courts have discretion, i.e. are able to select legal standards on which to base their judgments and to decide how to apply such standards to the case at hand. This does not mean, of course, that administrative court judges can do what they please. But, within some well-established boundaries, they can select from among various rules and principles those legal standards which apply to the case before them, interpret their meaning, and assess their importance. We aim to understand this process. (shrink)

The conceptual model of United Nations reform - "UN 3.0" includes the General Program of Action on UN Reform, consisting of two stages. The first stage for 2020-2025 envisages the transformation of the main organs of the UN - the General Assembly and the Security Council with measures to improve the effectiveness of the management system, address the "veto problem", problem of financing, improve staff work and administrative and financial control, strengthen UN media, improvement of work with the global civil (...) society. The General Assembly is converted into the General All-Parliamentary Assembly of the UN. In the structure of the Assembly, the Council for Law is being established, which coordinates the activities of UN structures in the field of law. To coordinate the activities of the UN in the field of human rights and civil society, ethical issues, the General all-parliamentary Assembly creates the Council on ethics, human rights and civil society and transforms the Committee on information into the Council on public information and communication with civil society. The structure of the Council includes all UN media. The reform of the UN Security Council is carried out in three sub-stages. At the 1st sub-stage (2020-2021) the Security Council is transformed into the Council of Existential Security (CES). The membership of the CES is increased to 25 member countries, of which five countries have the right of the unconditional (absolute, eternal) veto: Great Britain, France, China, Russian Federation, USA. The General All-Parliamentary Assembly elects 15 new permanent members of the Council of Existential Security with the right of the conditional (limited) veto: Argentina, Australia, Brazil, Canada, Egypt, Germany, India, Indonesia, Italy, Mexico, South Africa, Nigeria, Pakistan , Turkey, Japan (if they fulfill the mandatory restrictive conditions). At this sub-stage, the CES elects also five non-permanent members with the right of a conditional (limited) veto when they meet the mandatory restrictive conditions, with a rotation period of 2 years from geographical regions (or regional unions): Africa, Latin America and the Caribbean, Asia and the Pacific Ocean (2 places), Eastern Europe. On the second sub-stage (2022-2023), subject to the effective activity of the CES of the enlarged composition and compliance with mandatory restrictive conditions, new permanent members of the "Existential Security Council" are elected with the right of a conditional (limited) veto: Iran, Spain, Poland, Saudi Arabia. Members of the CES may be regional unions, whose member countries are not represented in the CES, but still have one vote with the right of a conditional (limited) veto. -/- Two essential levels of the veto: 1. Unconditional (absolute, eternal) veto is the historical right of veto of the five permanent members of the Council of Existential Security - Great Britain, China, Russia, USA, France; 2. Сonditional (limited) veto is the veto of other permanent and non-permanent members of the Council of Existential Security. The right of veto is a unique international school for the achievement of consensus, a school of high democracy for Humanity, a reliable guarantee of the viability of the UN structure. The Council for Existential Security centralises the management of the UN subsidiary bodies with the expansion of their security functions: the Military Staff Committee, the Counter-Terrorism Committee, the Committee for the Prevention of the Spread of Nuclear, Chemical and Biological Weapons, the Sanctions Committees and other committees. On the basis of the decision of the Council of Existential Security, the General All-Parliamentary Assembly creates permanent contingents of UN peacekeeping and counter-terrorism forces. In addition, two Centers are being created in the structure of the Council for Existential Security: the World Center for the Elimination of the Effects of Technogenic and Natural Disasters with branches on all continents and the World Center for the Analysis of Existential Risks and the Overall Security Strategy. The Center is developing the Programs of research and monitoring of global existential threats and risks. In order to increase the level of legitimacy and authority of the Secretary General of the United Nations, the Rules of procedure for elections to this post are changing. Each member country of the Council for Existential Security represents one of the most authoritative candidates for election to the post of Secretary General at the session of the General All-Parliamentary Assembly, with the possibility of nominating candidates from other countries, including those not members of the Council for Existential Security. Elections are held in two rounds during one day of the session of the Assembly. The Legal Committee of the UN General Assembly is developing a Program for the Reform of the Judicial System of the United Nations, which takes into account the proposals of the previous international discussion and determines the scope and terms of the reform of the courts. In accordance with the Program of Action on UN Reform for 2020-2025, reforms are under way in the structure of the Economic and Social Council. The central task of the reform is to strengthen the coordinating role of ECOSOC in the entire system of UN-related specialized agencies, funds and programs related to the Council. The key task of the UN reform is the solution of the financing problem. A unified "UN Open Budget "Solidarity XXI" is being created, including the financing of peacekeeping operations and other expenses. Each country, a member of the United Nations, lists in an established period, once a year, an Existential contribution - the Earth Tax. The Earth Tax for each UN member state is established on the basis of four scales of calculation: Scale I - for 5 permanent members of the Council of Existential Security, who have the right of absolute (absolute) veto; Scale II - for the permanent members of the SEB, who have the right to a conditional (limited) veto; Scale III - for non-permanent members of the SEB, who have the right to a conditional (limited) veto; Scale IV - for all other UN member countries. The program of action on UN reform includes a set of measures to ensure transparent work of the International Civil Service Commission with the involvement of the UN media. To strengthen control functions in the sphere of personnel policy, administrative and financial management, the General All-Parliamentary Assembly of the United Nations establishes the Permanent Commission on Ethics and Administrative and Financial Control. All members of the Commission, members of the Committees and auditors are independent in their activities from the leadership of the United Nations, its funds and programs. The General All-Parliamentary Assembly completes the first stage of the Program of Action on UN Reform in 2025 and, following an open discussion, introduces a single language of international communication - Esperanto and approves it as the official language of the United Nations. With a view to more effective work of the central UN governing bodies in the face of increasing existential threats and risks, reducing the current expenses for the maintenance of the central bodies of the UN, the Council for Existential Security and the General All-Parliamentary Assembly decide on the relocation of the UN headquarters to Iceland. The UN building complex in New York is transferred to preferential use of non-governmental organizations, which contribute to the implementation of the goals of the United Nations. At the second stage of the UN reform in the period 2026-2028, additional necessary transformations are being made in the UN system. At the end of the first stage of the reform, taking into account the reforms carried out by the main organs of the United Nations and the internal improvement of the work of all its structures, the United Nations Program of Action for the years 2026-2028 is being developed. (shrink)

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such a form of Originalism withstands scrutiny. -/- First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become (...) the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). -/- Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? -/- Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. -/- Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. -/- Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism in Gorsuch's form noted above. -/- Keywords: Originalism, Neil Gorsuch, Text, Textualism, Scalia, Interpretation, Pragmatics, Speaker Meaning, Art, Painting, Bruegel, Auden, Ekphrasis, Icarus, Bible, Ten Commandments, Herod, Declaration of Independence, Abraham Lincoln. (shrink)

In order for the liberalization and increase of international trade, the free trade agreement is generally deemed a most useful instrumentality within the region. Under the WTO regime, we can see that a plethora of FTA arrangements are negotiated, come into the treaty laws, as well as operate to regulate the binational or tri-national trade disputes on the regional basis. As most typical and frequented in FTAs, they usually include an arbitration and binational panel procedure as a dispute (...) class='Hi'>settlement mechanics. In many aspects, the procedures prescribed in most of FTAs could be apposite that most effectively and cheaply handle the disputes arising from the specific binational or trinational treaties. On the other hand, they could offer a chance to avoid the constitutional musters merely because diplomacy, international negotiation, ratification of treaties and approval of them traditionally fall within the powers of Congress or Executive under the separation of powers principle. This paper examined the legal issues as focused upon the NAFTA ch. 19, ch. 11 and US constitution. The chapters instituted the binational panel procedure dealing with the anti-dumping or counter measures as of subsidies, as well as legal dispute from the binational investment arrangements. From the consitutional viewpoint, we can be aware that the chapters could expressly contravene the Article III of original jurisdiction, Eleventh amendment of state sovereignty, and limitations of the treaty making powers inherent in the separation of powers principle. Given the overriding feature of such treaty clauses, the treaty should be ratified through the form of constitutional amendment, which requires a more stern step over most of the civilized constitutional states. The constitution is a supreme law in land, and represents a popular sovereignty as sheerly distinguished from the constitutional function of normal branches. When the special mechanics of dispute settlement may adopt an option of forum for escape, it is viewed that its unconstitutionality could yet be cured because the constitutional language of Article III original jurisdiction is considered mandatory or exclusive. I believe that the constitutional amendment procedure only could properly dispose such arrangements. While some areas of the presidential powers are deemed not subject to constitutional review as resorted upon the doctrine of political question or judicial self-restraint, the current jurisprudence gradually finds some limitations on the presidential power of foreign affairs including the treaty or war making provisions. As for a would-be treaty party of FTA, the constitutional issues raised in US is not entirely irrelevant to the Korean case ahead. (shrink)

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne (...) meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. -/- Keywords: originalism, original meaning, Scalia, interpretation, meaning. (shrink)

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our (...) problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized. (shrink)

The use of neuroscientific evidence in criminal trials has been steadily increasing. Despite progress made in recent decades in understanding the mechanisms of psychological and behavioral functioning, neuroscience is still in an early stage of development and its potential for influencing legal decision-making is highly contentious. Scholars disagree about whether or how neuroscientific evidence might impact prescriptions of criminal culpability, particularly in instances in which evidence of an accused’s history of mental illness or brain abnormality is offered to support (...) a plea of not criminally responsible. In the context of these debates, philosophers and legal scholars have identified numerous problems with admitting neuroscientific evidence in legal contexts. To date, however, less has been said about the challenges of evaluating the evidence upon which integrative mechanistic explanations that bring together evidence from different areas of neuroscience are based. As we explain, current criteria for evaluating such evidence to determine its admissibility in legal contexts are inadequate. Appealing to literature in the philosophy of scientific experimentation and theoretical work in the social, cognitive and behavioral sciences, we lay the groundwork for reforming these criteria and identify some of the implications of modifying them. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular (...) conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

This Article aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become imbued with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due both to the WTO’s specific dispute settlement procedures and to the substantive nature of precautionary measures. Indeed, such measures’ foundation on “insufficient scientific evidence” dramatically undermines the probative value of science in WTO adjudication and creates a seeming contradiction: The system requires defendants (...) to provide legal evidence of the absence of sufficient scientific evidence. The reasoning of the Panel on the EC–Biotech case was riddled with this apparent paradox. For the first time, the US–Continued Suspension case has opened a gateway to address this fundamental issue. (shrink)

This book can be useful for college seniors or graduate students who have studied law to some extent. It also can inspire law professors, business people, Members of the National Assembly, administrative officials, in addition to all intellectuals who suffer from whipping or beating due to an incomprehensible legal structure and mandates relevant with their routine desk work. -/- Chapter 1 of this book examines the essence of existing constitution and international law theories directed to the nature of state power, (...) market and civil democracy in a rapidly developing international society in the age of globalization. Most of discussions had been expended to introduce and survey a new legal perception and its logic of reasoning as a law indebted to the concept of world law theory. Chapter 2 studies the core contents of international law according to the chapter on international law and international relations of the United States. It was spelled out to comply with the explanations and comments incorpated within the 4th edition of the Restatement of the United States. -/- Chapter 3 refers to the legal system characterized as a public law and concerning a regulatory measure over the world market by states. An idealistic class of citizens, who emerged for a capitalist hegemony, generally have a status of sovereign, which came into being as owed to their revolution. However, it is also true that the citizens as an individual or laity are required to obey the regulations of state in the market. The interstate commerce clause of the United States Constitution is generally viewed as being shunned with an intention that state governments' measures to regulate the market should not hinder the prosperity of US market at the federal level. WTO laws known to be the most important international trade law, in fact, have a structure similar to the interstate commerce clause of United States Constitution. In this point of view, scholars gave a name to WTO as the world economic constitutional system. In the same vein, WTO member countries should not hinder the prosperity of a single world market as if the Clause requires pursuing that of a single federal market. Chapter 4 summarizes the core of legal norms, which is purported to study the jurisprudence of global market in coverage of fundamental principles espousing the freedom of contract, laws of sales, contract, documentary letter of credit, basic rule on the agencies of civil law. Therefore, we will be exposed to the laws of United Nations convention on the sales contract (CISG), the United Nations contract law, popularly cllled Principles as well as short introductions for the agency laws and cases relating the civil dispute of documentary L/Cs. -/- I am unfeigned to confess that this book is neither thorough nor complete in terms of the craftsmanship of necessary exhaustiveness. So its contents may insufficiently cover issues or discussions as contrary to the author's purpose. However, I have exerted utmostly to include and cover as much as possible what I think is necessary for readers to grasp new theories and basic principles. I plan to add necessary revisions and supplements as opportunities arise. As a scholar, I always feel cautious and sorry about publishing books. However, the development of global market, civil democracy, and the universal legal system related to them is certainly Darwinistic and an evolutionary joy that can be duly sensed in the field of law. I dare to recommend that readers can enjoy. (shrink)

Justiciability sets the boundaries of judicial review and the rule of law. A justiciable issue is that which is appropriate within a judicial forum. That is, where an "independent and impartial body" can remedy rights violations of identifiable claimants, the issue before it is justiciable. If it falls beyond what is judicially determinable, it is 'non-justiciable'. The principle is not fixed, as it does not permanently set the boundaries of that which is appropriate for judicial determination. (...) Rather, it evolves "from context to context," and expands and narrows along what falls within judicial competencies at a particular time. On an elementary level, it is distinct from jurisdiction, as it establishes boundaries of subject matter on policy or constitutional grounds, whereas jurisdiction is grounded in established legal rules. However, questions of jurisdiction can be subsumed under broader questions of justiciability. (shrink)

What factors affect judicial decision-making? The legal system is of utmost importance because of its impact on our lives. Judges appear to have the most power among any social workers seeing as the precedents set in their decisions are tantamount to written law. Nevertheless, judges may be subject to certain biases, moral and cognitive alike, which influence their rulings. Looking into how morality and cognitive biases affect judges may also reveal how we as individuals handle combining morals with ethics- (...) as well as whether any discrepancies among ourselves are justifiable. An investigation into relevant moral and jurisprudential theories revealed much about the inner workings of a judge’s mindset- whether he or she recognizes it or not. Coupling this with corroborated research on a select few heuristics present specifically for judges sets the foundation for an array of possible solutions in order to ensure the most impartial judicial proceedings. Plausible remedies include conducting premortems, implicit association tests, and a revised ruling procedure. (shrink)

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, (...) and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction. -/- Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence. -/- To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it. -/- This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value. (shrink)

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of petty (...) officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties. (shrink)

Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a (...) challenge to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis. (shrink)

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

The purpose of this article is to examine the feasibility and working of the conciliatory means for settlement of intellectual property disputes in Jordan. Arbitration is the principal mechanism used.

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive (...) interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...) other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc. (shrink)

While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...) possible, including the elements of law and morality that are operated by combatants in war. I suggest that, ethically speaking, deploying a legally competent robot in some legally regulated realm is not much different from deploying a more or less well-armed, vulnerable, obedient, or morally discerning soldier or general into battle, a police officer onto patrol, or a lawyer or judge into a trial. All feature automaticity in the sense of deputation to an agent we do not then directly control. Such relations are well understood and well-regulated in morality and law; so there is not much challenging philosophically in having robots be some of these agents — excepting the implications of the limits of robot technology at a given time for responsible deputation. I then consider this proposal in light of the differences between two conceptions of law. These are distinguished by whether each conception sees law as unambiguous rules inherently uncontroversial in each application; and I consider the prospects for robotizing law on each. Likewise for the prospects of robotizing moral theorizing and moral decision-making. Finally I identify certain elements of law and morality, noted by the philosopher Immanuel Kant, which robots can participate in only upon being able to set ends and emotionally invest in their attainment. One conclusion is that while affectless autonomous devices might be fit to rule us, they would not be fit to vote with us. For voting is a process for summing felt preferences, and affectless devices would have none to weigh into the sum. Since they don't care which outcomes obtain, they don't get to vote on which ones to bring about. (shrink)

In this new edition, a hypothesis is put forward for the first time to unify the Big Bang theory and the evolutionary theory by showing both events following the same set of fundamental interrelationships. As the evolution of life is a part of the evolutions of the universe, these two events express many fundamental similarities (this is self-similarity, which means a part of the system is similar to the whole system). Based on the same principle, the evolution of multicellular organisms, (...) social evolution, development of the human body, and human technological development are all a part of the evolution of life. Thus, they all follow the same set of rules that all life follows and, at the fundamental level, the interrelationships that the Big Bang follows. Therefore, all of these events follow the fundamental interrelationships and express fundamental similarities. In other words, all these events are the specific expressions of those fundamental interrelationships – the fundamental mechanism that governs everything in the universe. -/- Upon these interrelationships, new approaches to study social development and technological development are employed. By using the knowledge of the medical sciences, including the structures (anatomy and histology), functions (physiology) and development (embryology) of a human body; knowledge of the evolution of life; and the concept of fundamental interrelationships, we can see the future beyond the horizon. Using the nerve system in parallel as a model, we can comprehensively understand the development of the information revolution. Based upon parallel interrelationships, we can see that the transformation of society due to individuals’ power increase brought by new technologies bears great similarities with the transformation from the solid state of ice to the liquid state of water due the individual molecules’ kinetic energy increase. -/- As the fundamental interrelationships govern social evolution, all events in human civilisation are simply specific expressions of those rules in which significant social events not only changed the course of civilisation but left so many unanswered mysteries: how did the Greeks build such brilliant civilisations; why did the Scientific Revolution originate from the West rather than the East such as in China; why did the Chinese society remain in feudalism for such a long time while the Western society had evolved into a higher level – industrialization and modern society; why did the Chinese civilisation fall from its ancient glory in the modern time but rapidly re-rise again to a super power in the last few decades? All these mysteries remain unanswered because of the lack of fundamental laws of physics and evolutionary biology used in the traditional methodologies of social science. As the fundamental laws of physics are the fundamental mechanism for everything and these mysteries are a part of the evolution of life, the fundamental laws of physics and evolutionary biology are used in tackling these unanswered issues. For example, upon parallel relationship, Chinese civilisation is compared with the transition from unicellular organisms to multicellular organisms. From how unicellular organisms aggregate and evolve new rules to organise themselves, we can much better understand how human individuals aggregate to form societies and evolve new cultures to organise themselves in social evolution. Furthermore, transformation from the solid state of ice to the liquid state of water is used to analyze Chinese social evolution. With these approaches the mysteries in Chinese civilisation have been answered. -/- Ultimately, all these discussions in this book have demonstrated that the Interrelationships Model has unified social science with natural science, and furthermore, science with philosophy. This is an important attempt in answering the most fundamental and intriguing question of all – the Theory of Everything. -/- Currently, this book is for FREE download. (shrink)

This collection of articles was written over the last 10 years and edited to bring them up to date (2017). The copyright page has the date of the edition and new editions will be noted there as I edit old articles or add new ones. All the articles are about human behavior (as are all articles by anyone about anything), and so about the limitations of having a recent monkey ancestry (8 million years or much less depending on viewpoint) and (...) manifest words and deeds within the framework of our innate psychology as presented in the table of intentionality. As famous evolutionist Richard Leakey says, it is critical to keep in mind not that we evolved from apes, but that in every important way, we are apes. If everyone was given a real understanding of this (i.e., of human ecology and psychology to actually give them some control over themselves), maybe civilization would have a chance. As things are however the leaders of society have no more grasp of things than their constituents and so collapse into anarchy is inevitable. The first group of articles attempts to give some insight into how we behave that is reasonably free of the theoretical delusions that are universal. In the next group, I show how these insights apply by reviewing some books in philosophy and psychology. Next I review books on science and religion and finally provide reviews and articles showing how understanding of both science and philosophy gives insight into the tragic delusions destroying the world. People believe that society can be saved by science, religion and politics, so I provide some suggestions as to why this is unlikely via short articles and reviews of recent books by well-known writers. It is critical to understand why we behave as we do and so the first section presents articles that try to describe (not explain as Wittgenstein insisted) behavior. I start with a brief review of the logical structure of rationality, which provides some heuristics for the description of language (mind, rationality, personality) and gives some suggestions as to how this relates to the evolution of social behavior. This centers around the two writers I have found the most important in this regard, Ludwig Wittgenstein and John Searle, whose ideas I combine and extend within the dual system (two ii systems of thought) framework that has proven so useful in recent thinking and reasoning research. As I note, there is in my view essentially complete overlap between philosophy, in the strict sense of the enduring questions that concern the academic discipline, and the descriptive psychology of higher order thought (behavior). Once one has grasped Wittgenstein’s insight that there is only the issue of how the language game is to be played, one determines the Conditions of Satisfaction (what makes a statement true or satisfied etc.) and that is the end of the discussion. Since philosophical problems are the result of our innate psychology, or as Wittgenstein put it, due to the lack of perspicuity of language, they run throughout human discourse and behavior, so there is endless need for philosophical analysis, not only in the ‘human sciences’ of philosophy, sociology, anthropology, political science, psychology, history, literature, religion, etc., but in the ‘hard sciences’ of physics, mathematics, and biology. It is universal to mix the language game questions with the real scientific ones as to what the empirical facts are. Scientism is ever present and the master has laid it before us long ago, i.e., Wittgenstein (hereafter W) beginning with the Blue and Brown Books in the early 1930’s. "Philosophers constantly see the method of science before their eyes and are irresistibly tempted to ask and answer questions in the way science does. This tendency is the real source of metaphysics and leads the philosopher into complete darkness." (BBB p18) The key to everything about us is biology, and it is obliviousness to it that leads millions of smart educated people like Obama, Chomsky, Clinton and the Pope to espouse suicidal utopian ideals that inexorably lead straight to Hell on Earth. As W noted, it is what is always before our eyes that is the hardest to see. We live in the world of conscious deliberative linguistic System 2, but it is unconscious, automatic reflexive System 1 that rules. This is the source of the universal blindness described by Searle’s The Phenomenological Illusion (TPI), Pinker’s Blank Slate and Tooby and Cosmides’ Standard Social Science Model. The astute may wonder why we cannot see System 1 at work, but it is clearly counterproductive for an animal to be thinking about or second guessing every action, and in any case, there is no time for the slow, massively integrated System 2 to be involved in the constant stream of split second ‘decisions’ we must make. As W noted, our ‘thoughts’ (T1 or the ‘thoughts’ of System 1) must lead directly to actions. iii It is my contention that the table of intentionality (rationality, mind, thought, language, personality etc.) that features prominently here describes more or less accurately, or at least serves as an heuristic for, how we think and behave, and so it encompasses not merely philosophy and psychology, but everything else (history, literature, mathematics, politics etc.). Note especially that intentionality and rationality as I (along with Searle, Wittgenstein and others) view it, includes both conscious deliberative System 2 and unconscious automated System 1 actions or reflexes. Thus, all the articles, like all behavior, are intimately connected if one knows how to look at them. As I note, The Phenomenological Illusion (oblivion to our automated System 1) is universal and extends not merely throughout philosophy but throughout life. I am sure that Chomsky, Obama, Zuckerberg and the Pope would be incredulous if told that they suffer from the same problem as Hegel, Husserl and Heidegger, (or that that they differ only in degree from drug and sex addicts in being motivated by stimulation of their frontal cortices by the delivery of dopamine (and over 100 other chemicals) via the ventral tegmentum and the nucleus accumbens), but it’s clearly true. While the phenomenologists only wasted a lot of people’s time, they are wasting the earth and their descendant’s futures. Many of the articles describe the ‘digital delusions’, which confuse the language games of System 2 with the automatisms of System 1, and so cannot distinguish biological machines (i.e., people) from other kinds of machines (i.e., computers). The ‘reductionist’ claim is that one can ‘explain’ behavior at a ‘lower’ level, but what actually happens is that one does not explain human behavior but a ‘stand in’ for it. Hence the title of Searle’s classic review of Dennett’s book (“Consciousness Explained”)— “Consciousness Explained Away”. In most contexts ‘reduction’ of higher level emergent behavior to brain functions, biochemistry, or physics is incoherent. Also for ‘reduction’ of chemistry or physics, the path is blocked by chaos and uncertainty. Anything can be ‘represented’ by equations, but when they ‘represent’ higher order behavior, it is not clear (and cannot be made clear) what the ‘results’ mean. Reductionist metaphysics is a joke, but most scientists and philosophers lack the appropriate sense of humor. Other digital delusions are that we will be saved from the pure evil (selfishness) of System 1 by computers/AI/robotics/ nanotech/genetic engineering created by System 2. The No Free Lunch principal tells us there will be serious and possibly fatal consequences. The adventurous may regard this principle as a higher order emergent expression of the Second Law of Thermodynamics. Hi-tech enthusiasts hugely underestimate the problems iv resulting from unrestrained motherhood, and of course it is neither profitable nor politically correct (and now with third world supremacism dominant, not even possible) to be honest about it. The last section describes various versions of the ‘altruism delusion’ that we are selected for cooperation, and that the euphonious ideals of Democracy, Diversity and Equality will lead us into utopia, if we just manage things correctly (the possibility of politics). Again, the No Free Lunch Principle ought to warn us it cannot be true, and we see throughout history and all over the contemporary world, that without strict controls, selfishness and stupidity gain the upper hand and soon destroy any nation that embraces it. In addition, the monkey mind steeply discounts the future, and so we cooperate in selling our descendant’s heritage for temporary comforts, greatly exacerbating the problems. I describe versions of this delusion (i.e., that we are basically ‘friendly’ if just given a chance) as it appears in some recent books on sociology/biology/economics. I end with an essay on the great tragedy playing out in America and the world, which can be seen as a direct result of our evolved psychology manifested as the inexorable machinations of System 1. Our psychology, eminently adaptive and eugenic on the plains of Africa from ca. 6 million years ago, when we split from chimpanzees, to ca. 50,000 years ago, when many of our ancestors left Africa (i.e., in the EEA or Environment of Evolutionary Adaptation), is now maladaptive and dysgenic and the source of our Suicidal Utopian Delusions. So, like all discussions of behavior (philosophy, psychology, sociology, biology, anthropology, politics, law, literature, history, economics, soccer strategies, business meetings, etc.), this book is about evolutionary strategies, selfish genes and inclusive fitness (kin selection). Many accept the delusion that we are selected for cooperation with people generally (group selection or altruism) and not just our immediate relatives (kin selection or inclusive fitness), so I spend some time in the essays of the last section demolishing this fantasy. One thing rarely mentioned by the group selectionists is the fact that, even were ‘group selection’ possible, selfishness is at least as likely (probably far more likely in most contexts) to be group selected for as altruism. Just try to find examples of true altruism in nature –the fact that we can’t (which we know is not possible if we understand evolution) tells us that its apparent presence in humans is an artefact of modern life concealing the facts, and that it can no more be selected for than the tendency to suicide (which in fact it is). One does not really need science or mathematics to grasp this – it is crushingly obvious that an v organism cannot be selected for behavior that decreases the frequency of its own genes in the next generation. One might also benefit from considering a phenomenon never (in my experience) mentioned by group selectionists -- cancer. No group has as much in common as the (originally) genetically identical cells in our own bodies-a 100 trillion cell clone-- but we are all born with thousands and perhaps millions of cells that have already taken the first step on the path to cancer and generate millions to billions of cancer cells in our life. If we did not die of other things first, we (and perhaps all multicellular organisms) would all die of cancer. Only a massive and hugely complex mechanism built into our genome that represses or derepresses trillions of genes in trillions of cells, and kills and creates billions of cells a second, keeps the majority of us alive long enough to reproduce. One might take this to imply that a just, democratic and enduring society for any kind of entity on any planet in any universe is only a dream, and that no being or power could make it otherwise. It is not only ‘the laws’ of physics that are universal and inescapable, or perhaps we should say that inclusive fitness is a law of physics. The great mystic Osho said that the separation of God and Heaven from Earth and Humankind was the most evil idea that ever entered the Human mind. In the 20th century an even more evil notion arose—that humans are born with rights, rather than having to earn privileges. Thus, every day the population increases by 200,000, who must be provided with resources to grow and space to live, and who soon produce another 200,000 etc. And one almost never hears it noted that what they receive must be taken from those already alive. Their lives diminish those already here in both major obvious and countless subtle ways. Every new baby destroys the earth from the moment of conception. There cannot be human rights without human wrongs. It cannot be more obvious, but one will never see the streets full of protesters against motherhood. America and the world are in the process of collapse from excessive population growth, most of it for the last century and now all of it due to 3rd world people. Consumption of resources and the addition of 4 billion more ca. 2100 will collapse industrial civilization and bring about starvation, disease, violence and war on a staggering scale. The earth loses about 2% of it’s topsoil every year, so as it nears 2100, most of it’s food growing capacity will be gone. Billions will die and nuclear war is all but certain. In America, this is being hugely accelerated by massive immigration and immigrant reproduction, combined with abuses made possible by democracy. Depraved human nature inexorably turns the dream of democracy and diversity into a vi nightmare of crime and poverty. China will continue to overwhelm America and the world, as long as it maintains the dictatorship which limits selfishness. The root cause of collapse is the inability of our innate psychology to adapt to the modern world, which leads people to treat unrelated persons as though they had common interests. This, plus ignorance of basic biology and psychology, leads to the social engineering delusions of the partially educated who control democratic societies. Few understand that if you help one person you harm someone else—there is no free lunch and every single item anyone consumes destroys the earth beyond repair. Consequently, social policies everywhere are unsustainable and one by one all societies without stringent controls on selfishness will collapse into anarchy or dictatorship. Without dramatic and immediate changes, there is no hope for preventing the collapse of America, or any country that follows a democratic system. The popular notions supported by the Democratic Party and Third World Supremacists are that Democracy, Diversity, Equality and Social Justice will produce a Utopia in America and the world, but it is clear as crystal that they unavoidably foster selfishness and divisiveness and are producing collapse. Hence my concluding essay “Suicide by Democracy”. The most basic facts, almost never mentioned, are that there are not enough resources in America or the world to lift a significant percentage of the poor out of poverty and keep them there. Even the attempt to do this is already bankrupting America and destroying the world. The earth’s capacity to produce food decreases daily, as does our genetic quality. And now, as always, by far the greatest enemy of the poor is other poor and not the rich. -/- My writings are available as paperbacks and Kindles on Amazon. -/- Talking Monkeys: Philosophy, Psychology, Science, Religion and Politics on a Doomed Planet - Articles and Reviews 2006-2017 (2017) ASIN B071HVC7YP. -/- The Logical Structure of Philosophy, Psychology, Mind and Language in Ludwig Wittgenstein and John Searle--Articles and Reviews 2006-2016 (2017) ASIN B071P1RP1B. -/- Suicidal Utopian Delusions in the 21st century: Philosophy, Human Nature and the Collapse of Civilization - Articles and Reviews 2006-2017 (2017) 2nd printing with corrections (Feb 2018) ASIN B0711R5LGX -/- Suicide by Democracy: an Obituary for America and the World (2018) ASIN B07CQVWV9C -/- . (shrink)

ABSTRACT A new ‘political philosophy’ is indispensable to the ‘post-Corona world,’ and this paper tries to analyze the future of ‘liberal democracy’ in it. It shows that ‘liberal democracy’ faces a ‘global crisis’ that has begun before, but the ‘novel Coronavirus pandemic,’ as a setback for it, strongly encourages that crisis. ‘Liberalism’ and ‘democracy,’ which had long been assumed by ‘political philosophers’ to go together, are now becoming decoupled, and the ‘liberal values’ of ‘democracy’ are eroding. To find why and (...) how, this paper analyzes ‘authoritarianism,’ ‘totalitarianism,’ and the evils and propensities of ‘democracy’ that bring about further erosions of ‘liberal values.’ There may be difficult trade-offs to be made between ‘liberal’ and ‘authoritarian’ ‘values’ - and, after the experience of ‘Coronavirus,’ this paper shows the ‘illiberal or authoritarian democracy’ may become stronger. -/- KEYWORDS: democracy, liberalism, liberal democracy, illiberal democracy, the novel Coronavirus pandemic, Covid-19, authoritarianism, totalitarianism. -/- EXTENDED ABSTRACT For almost a century in West, ‘democracy’ has meant ‘liberal democracy’-a political system marked not only by ‘free and fair elections,’ but also by ‘liberal values.’ ‘Liberalism’ applied to the problem of the limits of the criminal law would require commitment to the presumption in favor of ‘liberty.’ If the word ‘liberal’ is to have any utility in this context, it should refer to one who has so powerful a commitment to ‘liberty’ that she is motivated to limit the number of acknowledged liberty-limiting or coercion-legitimizing principles as narrowly as possible. So, she only believes in ‘harm-principle’ as the morally relevant reason for criminal prohibitions. ‘Offense principle’ and ‘paternalistic’ and ‘moralistic’ considerations, when introduced as support for penal legislation, have no weight at all. So, it means ‘autonomy’ and ‘self-regarding vs. other-regarding actions distinction’ based on which the human is the owner of her mind and body and everything consenting adults do is beyond the realm of morality and law. It leads to ‘individual’ ‘basic rights and liberties’ such as ‘basic rights and liberties’ of ‘speech,’ ‘religion,’ and ‘property’ and ‘collective’ ‘basic rights and liberties’ such as ‘basic rights and liberties of assembly,’ ‘civil society,’ ‘political pluralism,’ ‘democratic institutions,’ and ‘non-governmental organizations.’ ‘Liberalism’ also believes in ‘equality of conditions, ‘equal and free participatory rights in political decision making,’ and ‘collective self-governance.’ It also believes in the ‘rule of law,’ a ‘separation of powers,’ and ‘checks and balances.’ However, even under fair and free elections, the elected leaders can be ‘populists,’ ‘ultra-nationalists,’ ‘racists,’ ‘fascists,’ and ‘authoritarians’ who do not respect ‘inviolable basic rights and liberties,’ and suppress ‘minorities.’ Democratically elected leaders can routinely ignore constitutional limits on their power and deprive their citizens of ‘basic rights and liberties.’ The two strands of ‘liberal democracy’ have been coming apart in the world, and the ‘liberal’ elements of ‘democracy’ have been fraying and eroding even before the ‘novel Coronavirus pandemic.’ Even before the Coronavirus hit, there was already much discussion of a crisis of ‘liberal democracy.’ In particular, there has been a debate about whether ‘liberalism’ and ‘democracy,’ which had long been assumed to go together, were becoming decoupled. This paper shows ‘liberal democracy’ faces a ‘global crisis’ that had begun before the ‘novel Coronavirus pandemic.’ It also analyzes ‘authoritarianism,’ ‘totalitarianism,’ ‘liberalism,’ and ‘democracy’ and shows that Covid-19 is a setback for ‘liberal democracy.’ What is striking about the current moment is that many of the ‘liberal’ elements of ‘democracy’ are so far holding up under immense pressure. ‘Illiberal democracies’ seemed to be emerging in many countries. This model of ‘illiberal democracy,’ in which elections continue to be held but some individual rights and liberties are curtailed, may emerge stronger from this new crisis. In that sense, the ‘pandemic’ may become a challenge not only to ‘democracy’ as such but also to ‘liberal democracy’ in particular – in other words, a system of popular sovereignty together with guaranteed basic rights, such as freedom of association and expression and checks and balances on executive power. ‘Authoritarian’ procedures may succeed in mitigating the spread of the ‘Coronavirus,’ but the world now faces another problem: that when the virus recedes, many ‘liberal democracies’ will be far less ‘liberal’ or ‘democratic’ than they were before. In times of crisis, ‘liberal values’ have been ignored temporarily in the name of executive power. However, the ‘temporary’ can become ‘permanent.’ In addition, if citizens lose their faith in the legitimacy of ‘liberal democracy’ as the best form of government, and think ‘liberal democracy’ cannot function effectively during a crisis, and ‘authoritarian regimes’ manage the crisis more decisively, the world will slide towards ‘illiberal or authoritarian democracy,’ and many ‘liberal democracies’ will be at grave risk of failure. There may now be difficult trade-offs to be made between those basic rights and security - and, after the experience of Covid-19, many citizens may choose security. (shrink)

Research into Kelsen’s conception of judicial justice seems at first sight contradictory to his own Pure Theory of Law. Upon closer consideration this prima facie contradiction turns out to be only an appearance due to the paradoxical effect that is produced by Kelsen’s pure theory of law itself. By revealing three paradoxical effects of Kelsen’s work in this article, I try to show that research into a Kelsenian representation of judicial justice is not only possible but also meaningful. (...) The first paradox originates from Kelsen’s formalised and value-free concept of law, which unexpectedly confronts the judge with his moral responsibility for the material valuation of the law. Secondly, a paradox arises from Kelsen’s rationalised notion of relative justice, which in fact forces the judge to be absolutely convinced of the moral rightness of his judgement. The third paradox is a result of Kelsen’s idea of objectivised ‘social peace’, by which the judge just realises the subjective and irrational demands of justice. From my analysis of these three seeming contradictions in Kelsen’s pure theory of law emerges an apparent Kelsenian representation of judicial justice. Starting from his pure theory of law it should be possible to conceive of a ‘pure’ form of administration of law, which would stipulate social peace as a condition for the ‘purity’ of a judicial judgement. I even imagine that Kelsen considered peace as a conditio tacita for the validity of the whole legal order, just as he regarded the basic norm as conditio per quam and effectivity as conditio sine qua non for the validity of the legal order. In any case, according to Kelsen’s conception of judicial justice, social peace proves to be the implicit or tacit condition for a ‘pure’ judgement. With that this ‘pacifying jurisprudence’ can be understood as a surprising paragon of a ‘pure’ administration of justice, on the understanding that peace is not a sufficient but an obvious condition for a just administration of law. That this should also apply mutatis mutandis for Kelsen’s concept of the legal order as a whole will be made subject of further research. (shrink)

Universal Basic Income (UBI) has been proposed as a potential way in which welfare states could be made more responsive to the ever-shifting evolutionary challenges of institutional adaptation in a dynamic environment. It has been proposed as a tool of “real freedom” (Van Parijs) and as a tool of making the welfare state more efficient. (Friedman) From the point of view of complexity theory and evolutionary economics, I argue that only a welfare state model that is “polycentrically” (Polanyi, Hayek) (...) organized as an evolving network of distributed decision-making can respond to the challenges of complexity in an adaptively efficient manner. UBI has the theoretical possibility to facilitate flexible, bottom-up innovation, since a) it embodies the “rule of law” principles of generality, nondiscrimination, simplicity, and transparency, and b) it grants people widespread freedom to experiment, innovate, and deviate from established practices and norms; but whether it can be made to work as intended depends on a number of variables in its design. I situate my research in the contemporary UBI debate around automation and technological development, which I interpret creatively through the lens of contemporary evolutionary political economy. I advance a syncretic model of institutional design based upon the shared insights of the Santa Fe, Neo-Hayekian, and Neo-Schumpeterian schools of evolutionary economics that, following Adam Thierer and Michael Munger, I call the framework of Permissionless Innovation (PI). Under the PI framework, which is a development of the tradition of evolutionary liberalism (Hume, Smith, Mandeville, Mill, Hayek, Polanyi, Schumpeter, Hodgson), individuals are granted the default right to innovate without having to ask for permission, and the right to basic income, which they can use to support their right to innovate, mutate, and experiment. This framework is a liberal framework to the extent it relies on widespread human freedom as a means of fostering innovation and social learning. And it is an evolutionary framework to the extent that it seeks to facilitate evolutionary socioeconomic processes for the sake of social progress and welfare advancement. I proceed to show, through an analysis of how innovation operates in both the economy and the cultural domain, that UBI can be used as an important cornerstone of an evolutionary liberal model of “ecostructural” governance that treats the socioeconomic order as an ecological garden of spontaneous growths, adaptations, and innovations. I call this the Permissionless Innovation Universal Basic Income (PIUBI) framework. In it, the right to innovate, deviate, and mutate is upheld as the “gold standard” of institutional design whereby individuals are granted widespread freedoms combined with the provision of UBI and other innovation-fostering (carefully bound) services and regulations. In the coming decades, UBI may even enable poor people to take better advantage of Human Enhancement Technologies (HETs) and other experimental innovations. Such a framework is compatible with a fast pace of evolutionary development, but the regulatory model accompanying such a framework must be capable of responding to evolutionary lock-ins, maladaptive innovations, self-destructive behaviour on the part of UBI recipients, and the management of catastrophic and existential risks. In the end, I will have shown that the PIUBI framework can be justified as a plausible default institutional mechanism for responding to radical uncertainty, but it needs to be experimentally adapted to changing circumstances with the help of various situation-specific, polycentric, multi-level, approaches. (shrink)

Algeria is one of the many countries that are gifted with an abundantly rich and diversified urban heritage, which stems from the multiplicity of successive human civilizations and its natural environment that is rich in all forms of heritage. These can be invested from a tourism perspective for sustainable development in accordance with a myriad of global challenges that exist in the tourism space. The most important heritage areas in Algeria include, among others, Casbah of Algiers, on which this article (...) sheds light in this research. The Casbah (meaning citadel (fortress) refers unambiguously to the citadel of Algiers in Algeria and the traditional quarter gathered around it. In 1992, the United Nations Educational, Scientific and Cultural Organization (UNESCO) declared Casbah to be a World Cultural Heritage site. This article seeks to highlight the remarkable urban and cultural potential of the Casbah obtained throughout its ancient history and refers to the monumental buildings inter alia Ketchaoua Mosque, Al Safir Mosque, Grand Mosque, Palais des Rais, Palace of the Dey, Dar Hassan Pasha, and its cultural diversity such as traditional handicrafts jewellery, dress, furnish etc. By taking advantage of the heritage pillars for the sake of heritage tourism development and tourism promotion in a way that achieves the sustainability of this unique urban heritage area, great progress can be made. UNESCO support is in addition to the local government bodies that enacted a series of laws that regulate rules and offer direction to preserve this valuable heritage at the local and also on the global level. (shrink)

The strings of physics’ string theory are the binary digits of 1 and 0 used in computers and electronics. The digits are constantly switching between their representations of the “on” and “off” states. This switching is usually referred to as a flow or current. Currents in the two 2-dimensional programs called Mobius loops are connected into a four-dimensional figure-8 Klein bottle by the infinitely-long irrational and transcendental numbers. Such an infinite connection translates - via bosons being ultimately composed of 1’s (...) and 0’s depicting pi, e, √2 etc.; and fermions being given mass by bosons interacting in matter particles’ “wave packets” – into an infinite number of 8-Kleins. Each Klein 1) is one of the universe’s subuniverses (our own is 13.7 billion years old), 2) is made flexible through its binary digits which seamlessly, or almost seamlessly, join it to surrounding subuniverses and eliminate its central hole, and 3) possesses warped time and space because its foundation is the programmed curves in its mathematical Mobius loops (along with the twists they generate [p.7]). The universe functions according to the rules of fractal geometry. So the Mobius does not exist only at the cosmic level. It also manifests at the quantum scale, giving us photons and protons etc. Space and time are no longer separate, but are an indivisible space-time. So if space and the universe are infinite, how can time not be eternal? The past and the future must both extend forever (the idea of time being finite arises from confusion of our subuniverse with the one infinite universe). -/- BITS (Binary digiTS) only suggest existence of the divine if time is linear. Although a non-supernatural God is proposed via the inverse-square law coupled with eternal quantum entanglement, Einstein taught us that time is warped. Warped time is nonlinear, making it at least possible that the BITS composing space-time and all particles originate from the computer science of humans. -/- I suspect many readers will be content with reading this abstract. While there are more details, and mathematics, in the content; my natural style of writing is to avoid jargon and maths. I also tend to get philosophical. While I personally feel that there’s a lot of precious information in the content, I realize it won’t all be to everyone’s liking. Other subjects dealt with in this article are - the “Pioneer anomaly”, refinement of gravitational physics, dark energy and dark matter, quantum phenomena like mass and electric charge and quantum spin, Kepler’s laws of planetary motion, deflection of starlight by the sun, tides, falling bodies, Earth’s orbit, ancient Greek philosophers, Newton, Kepler, Galileo, Aristotle, Parmenides, Zeno of Elea, time travel into the past as well as the future, the elimination of distances in space, humanity’s construction of this universe we live in, The Law of Conservation of Matter-Energy, and support for the science-fiction-like idea of the electronic binary digits of 1 and 0 being the building blocks of our universe. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule (...) of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting (...) universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The (...) second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

BAIL JURISPRUDENCE in India (as in other common law countries) has evolved laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him/her under custody... The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the society by preventing the accused who had been set at liberty by the bail order from tampering with the evidence in a heinous crime. (...) At the same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it has been emphasized that the same should always be exercised very sparingly by the court of law. (shrink)

The law presents itself as a body of meaning, open to discovery, interpretation, application, criticism, development and change. But what sort of meaning does the law possess? Legal theory provides three sorts of answers. The first portrays the law as a mode of communication through which law-makers convey certain standards or norms to the larger community. The law's meaning is that imparted by its authors. On this view, law is a vehicle, conveying a message from a speaker to an intended (...) audience. The second theory portrays the law as a mode of interpretation, whereby judges, officials, and ordinary citizens make decisions about how the law applies in various practical contexts. The law's meaning is that furnished by its interpreters. According to this theory, law is a receptacle into which decision-makers pour meaning. The third viewpoint argues that these theories, while not altogether wrong, are incomplete because they downplay or ignore the autonomous meaning that the law itself possesses. This theory suggests that the law is basically a mode of participation, whereby legislators, judges, officials, and ordinary people attune themselves to an autonomous field of legal meaning. The law's meaning is grounded in a body of social practice which is independent of both the law's authors and its interpreters and which is infused with basic values and principles that transcend the practice. On this view, law is the emblem of meaning that lies beyond it. -/- Elements of all three theories are present in H.L.A. Hart's influential work, The Concept of Law, which attempts to fuse them into a single, all-encompassing theory. Nevertheless, as we will argue here, the attempt is not successful. Any true reconciliation of the communication and interpretation theories can only take place within the framework of a fully developed participation theory. In the early stages of his work, Hart lays the foundation for such a theory. However, his failure to elaborate it in a thoroughgoing way renders the work incomplete and ultimately unbalanced. As we will see, there is something to be learned from this failure. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can (...) be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)