Researchers face perennial difficulties in studying live jury deliberation. As a result, the academic community struggles to reach a consensus on key matters of legal reform concerning jury trials. The hurdles faced by empirical jury researchers are often legal or institutional. This note argues that the legal and institutional barriers preventing live deliberation research should be removed and discusses two forms that live deliberation research could take.

The paper was intended to make a tentative point about the organizational reform and types of organization, i.e., international, national and private. The author explores in the basics of public administration and contextualizes the variables often employed critically for the discipline of public policy and administration. They would include, for instance, the democratic principles,importance of communication and negotiation, the concept of policy network, diversity, technology and ethics, which are applied and argued over the transition from 1947 GATT to a WTO (...) nauguration in 1995. The present study of organizations or their reform would assively be consulted for the national or private reform, which tends to shed a focus on the legal perspective, organizational efficiency and reform. The studies in variance with the types of organization or institutional agenda, as well as in the viewpoint of public policy and administration are generally lacking or insufficient, at least, less systemic or fragmented. While the WTO has made much accomplishment since its inception, it would equally be true that the criticism and new vision had been raised and will be likely ahead. As it is one of the most dynamic and active international organizations, the author likes to exemplify it to test a scope of policy variables as interactive with the last and extended renovation in 1987-1994, which continue to be relevant with the new agendas and vision for a better paradigm of WTO and as an international organization. The author also expects that the future research can develop a set of distinct elements in response with the types of organization and from the viewpoint of public administration. (shrink)

At the heart of Kant’s legal-political philosophy lies a liberal, republican ideal of justice understood in terms of private independence (non-domination) and subjection to public laws securing freedom for all citizens as equals. Given this basic commitment of Kant’s, it is puzzling to many that he does not consider democracy a minimal condition on a legitimate state. In addition, many find Kant ideas of reform or improvement of the historical states we have inherited vague and confusing. The aim of (...) this paper is to untangle both puzzles by exploring Kant’s idea of self-governance. I argue that Kant’s idea of self-governance gives us a very good starting point for thinking about how to leave room for a variety of political systems—different ideals—that have grown out of and responding to different contingent historical and cultural circumstances. It also helps us identify those areas where we want to take extra care to build in safeguards to secure stability and to take sufficiently seriously humankind’s truly nasty sides. (shrink)

From year to year some of us, people of planet Earth, Earthlings, attacks intensify on the veto right in the UN Security Council. They consciously or unconsciously ignore its metaphisical, ontological and existential statuses established in 1945 by the founders of the United Nations as a result of the multimillion sacrificial struggle of all Humanity against nazism. Perhaps this is due to a misunderstanding of the metaphysics of international relations, the enduring existential significance of the veto for the viability of (...) the entire UN system in the nuclear-ecological information era, or because of the veiled, formal-procedural veto status enshrined in the UN Charter. The authors of the attacks substantiate their conclusions by the "non-democracy", "ineffectiveness" of the UN Security Council, "unfair privileges" of the five permanent members of the Security Council ("P1945"), a significant increase in the number of UN member states after 1945, the fate of the League of Nations, "geopolitical realities". According to the attackers, the veto in the UN Security Council makes the decision-making process "unequal and abortive", which does not contribute to maintaining peace and preventing civil wars, genocide, violation of human rights and aggression in international relations. Some politicians and experts propose not only to limit the veto right of the five permanent members of the UN Security Council, but to completely deprive them of this right, which, as we know, are nuclear powers and bear the main responsibility for international security, the preservation of peace and life itself on planet Earth. Taking into account 75-years experience in the use of the veto right in the UN Security Council, with the aim of strengthening the historical, metaphysical, existential and procedural-legal significance of the veto right, its fundamental role in resolving the most complex international problems in the context of the constantly increasing threats and risks of our times during the reform of the UN Security Council with the increased number of members of the Security Council, the UN Charter must establish two essential levels of the veto right: 1. Absolute (unconditional, eternal) veto — "VETO1945": 2. Conditional (limited) veto. (shrink)

English law is unambiguous that legal personality, and with it all legal rights and protections, is assigned at birth. This rule is regarded as a bright line that is easily and consistently applied. The time has come, however, for the rule to be revisited. This article demonstrates that advances in fetal surgery and (anticipated) artificial wombs do not marry with traditional conceptions of birth and being alive in law. These technologies introduce the possibility of ex utero gestation, and/or (...) temporary existence ex utero, and consequently developing human beings that are novel to the law. Importantly, therefore, the concepts of birth and born alive no longer distinguish between human beings deserving of legal protection in the way originally intended. Thus, there is a need for reform, for a new approach to determining the legal significance of birth and what being legally alive actually encompasses. Investigating the law of birth is of crucial importance, because of the implications of affording or denying the subjects of new reproductive technologies rights and protections. A determination of the legal status of the subject of fetal surgery or an artificial womb will determine what can and cannot be done to each entity. Moreover, the status afforded to these entities will drastically impact on the freedoms of pregnant women. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault (...) laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

A citizens’ movement in Berlin advocates for the expropriation of housing corporations and has won a significant majority in a popular referendum in September 2021. Building on this proposal, this paper develops a general account of expropriation as a measure for corporate reform and thereby contributes to the ongoing debate on the democratic accountability of business corporations. It argues that expropriation is a valuable tool for intervention in a dire situation in some economic sector to enable a re-structuring of the (...) governance of the assets in question. Compared with other tools available, expropriation is a more forward-looking, genuinely political measure that does not depend on the legal assignment of guilt but rather proceeds in a pragmatic and problem-oriented manner. It also allows us to reconsider in how far the market mechanism should be employed in the administration of assets. Objections from private property rights against expropriation fail as corporations generally are privileged, quasi-public institutions that can justifiably be subject to democratic interventions. Expropriation is thus an important addition to the arsenal of corporate reform proposals, especially for those concerned with a broad democratization of the corporation. (shrink)

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental processes, (...) mainly realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal (...) theory debates. -/- Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law. -/- The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop. (shrink)

Michiel Wielema: The March of the Libertines. Spinozists and the Dutch Reformed Church (1660–1750). ReLiC: Studies in Dutch Religious History. Hilversum: Uitgeverij Verloren, 2004; pp. 221. The Dutch Republic of the seventeenth century is famous for having cultivated an extraordinary climate of toleration and religious pluralism — the Union of Utrecht supported religious freedom, or “freedom of conscience”, and expressly forbade reli- gious inquisition. However, despite membership in the state sponsored Calvinist Dutch Reformed Church not being compulsory, the freedom to (...) gather and worship, or “to air anti-Christian or atheistic opinions” was little tolerated “within” the organized structure of the church, which functioned more as “an exclusive organisation for those willing to submit freely to certain confessional canons and to the disciplinary author- ity of the church’s governing bodies” (10): the consistories, classes, and synods. Those not prepared to submit to Reformed doctrine were free to leave the church without fear of any legal or political repercussions. However, for those not prepared to leave for reasons of personal belief, matters turned out to be quite different. Because the Reformed Church enjoyed full State protection, matters of doctrinal conflict could well evolve into political affairs. And, contrary to the Union of Utrecht, religious inquisition was in some cases actually applied with political approval for “heretics” within the Reformed Church. The main focus of The March of the Libertines is an investigation of this obvious tension. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the (...) distinctive perspective of law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)

One of the most detailed early modern discussions of the morality of esteem can be found in the work of the reformed jurist and historian Marquard Freher (1565–1614). Since the question of how much esteem others deserve is fraught with a high degree of uncertainty, Freher relied on the work of other legal humanists, who discussed questions of esteem from the perspective of arguments from the presumption of goodness. The humanist approach to the presumption of goodness integrated considerations about (...) presumed non-delinquency with considerations concerning natural needs, natural rights and natural duties grounded in natural rational capacities common to all (grown-up, healthy) human beings. It advised us to fulfill natural duties that derive from the natural need of being held in good esteem by others, and to develop socially valuable attitudes such as trust and positive emotions toward others. At the same time, this approach was responsive to considerations of prudence, both in grounding the presumption of goodness in considerations concerning causal powers and in balancing the presumption of goodness against a variety of presumptions of badness. Freher applied this understanding of the presumption of goodness to political practice in his role as an advisor to the Palatinate. (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)

SUMMARYThis article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to (...) echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions. (shrink)

This article argues in favor of modifying the medical model of severe psychiatric disturbances that underlies calling them "mental illness." The key reason for this proposal is that numerous specialists other than physicians as well as non-specialists contribute to the process of assisting a person recover from what the author suggests might better be called "extraordinary functional disability." There is little uniformity in existing definitions under state laws, but all involve three types of intervention: civil commitment; civil determination of (...) class='Hi'>legal competency; and standing to be subject to criminal law. Physicians typically make relevant determinations in each of these areas; but non-physicians are the principal care-givers once a determination has been made. (shrink)

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

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

This article critically examines the feminist movement in Ciudad Juárez, Mexico, highlighting the struggles and activism of Juarense women against social injustices, particularly those exacerbated by machismo, the Narco War, and the manufacturing industry. The analysis explores the roots of machismo in Mexican culture, the impact of the maquiladora industry on women's lives, and the rise of feminist activism in response to these challenges. Emphasizing the intersection of gender violence and legal frameworks, the article incorporates feminist legal theory (...) to argue for substantial legal reforms to combat the normalization of machismo and feminicide. It further discusses the resilience and determination of Juarense women, portraying their efforts as part of the broader global feminist movement. (shrink)

Stephen Schulhofer's book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, provides a carefully constructed and powerful case for rape-law reform. His effort is distinctive in three ways: (1) it takes the basic question of reform to be the moral one of determining which sexual interactions ought to be the subject of the criminal law, (2) it takes the right of sexual autonomy to serve as the basis for any successful legal reform, and (3) it makes (...) a philosophically sophisticated case for his own reform proposal. Schulhofer's efforts should be of great interest to philosophers, especially feminist legal philosophers, interested in questions that bear direct relevance to the relationships between autonomy, coercion, and consent as constrained by the requirements of due process. His careful and scrupulously fair discussion of influential reform recommendations set the stage for his own position (discussed in section VII), a critical evaluation thereof (sections VII and VIII), and sympathetic recommendations in VIII and IX. Of special value here is Schulhofer's attempt to extend his analysis of coerced consent to include certain "offers" made in contexts (e.g., the workplace) characterized by significant power differentials between persons. Section IX offers suggestions, generally friendly to Schulhofer's overall reform proposals, for identifying wrongful sexual interactions occurring in certain institutional or professional contexts. (shrink)

This article critically examines the feminist movement in Ciudad Juárez, Mexico, highlighting the struggles and activism of Juarense women against social injustices, particularly those exacerbated by machismo, the Narco War, and the manufacturing industry. The analysis explores the roots of machismo in Mexican culture, the impact of the maquiladora industry on women's lives, and the rise of feminist activism in response to these challenges. Emphasizing the intersection of gender violence and legal frameworks, the article incorporates feminist legal theory (...) to argue for substantial legal reforms to combat the normalization of machismo and feminicide. It further discusses the resilience and determination of Juarense women, portraying their efforts as part of the broader global feminist movement. (shrink)

In Ciudad Juarez, Mexico, the border city across from El Paso, TX, the intersection of "Machismo” (EntreMundos 2019), micro-machismo (EntreMundos 2019), the manufacturing industry—maquilas—and the Narco War has brought immense suffering to women. The Feminist Movement, born from gender violence intensified by the Narco War and entrenched cultural norms, is a response to these issues. Borderland women have raised their voices through protests on Women's International Day, advocating for legal reforms like nationwide abortion legalization and using social media (...) to spotlight these tragic realities. Despite facing violence and adversity, Juarense women persist in their unwavering pursuit of societal change. This article explores the driving forces behind this uprising and the resilient efforts of Juarez women to instigate meaningful societal shifts in their region. (shrink)

Jury science is fraught with difficulty. Since legal and institutional hurdles render it all but impossible to study live criminal jury deliberation, researchers make use of various indirect methods to evaluate jury performance. But each of these methods are open to methodological criticism and, strikingly, some of the highest-profile jury research programmes in recent years have reached opposing conclusions. Uncertainty about jury performance is an obstacle for legal reform—ongoing debates about the ‘justice gap’ for complainants of sexual offences (...) has rendered these problems stark. This paper proposes a way to advance the debate. (shrink)

This Special Issue is an outcome of the lectures and discussions on ‘Cross-cutting Themes and Concepts in Human Rights’, offered as a Seminar Course to the students of the MA Programme, School of International Studies, Jawaharlal Nehru University. As part of the Course, a Webinar on ‘Rethinking Rights and Justice for Non-Humans’ was held in 2022, in which the participants advanced some of the most compelling arguments for the meaningful representation of non-human entities in law and governance. In the three (...) sessions of the webinar, the participants explored the terrain of relevant concepts, emerging norms, and moral justifications that underline the case of non-human entities: (i) The Limits of Animal Rights: Exploring the Case for Multispecies Justice, (ii) Humanist Dimensions of Machines, and (iii) Representing Nature: Rights, Crimes, and Diplomacy. Scholarly literature on the subject matter sheds light on the gaps in existing legal frameworks concerning the responsibilities of human beings towards non-human life forms. There is evidence of a growing universal consciousness embedded in the worth and sacredness of non-human life forms. A series of developments in the fields of technology, philosophy, and other disciplines have moved non-human entities to the forefront of legal reforms, domestic and international. (shrink)

Francis Bacon was the youngest son of Nicholas Bacon, lord keeper of the great seal under Elizabeth I. He left Cambridge in 1575, studied law, and entered Parliament in 1581. Though roughly contemporary with Kepler, Galileo, and Harvey, Bacon’s grand schemes for the advancement of knowledge were not driven by their discoveries: he resisted the Copernican hypothesis, and did not give mathematics a central place in his vision of natural philosophy. His active public life, under both Elizabeth and James I, (...) was taken up with political business and legal reform. Bacon achieved high office as Lord Chancellor in 1618, until disgraced by corruption charges. His final years saw a furious spate of writing on natural philosophy, politics, and history. (shrink)

This paper is an attempt to describe the rationale behind recent Chinese Political-Legal Reforms. The article proposes an alternate to the “Socialism with Chinese Characteristics”.

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. [ii] In (...) terms of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. -/- At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? -/- While harmonization is widely promoted, its study and assessment is complex. (shrink)

Corporate governance is developing rapidly in many countries across the world. In this article, the existing state of corporate governance in Jordan is examined. Jordan does not have a corporate governance code per se. The article reveals that overall Jordan has in place some of the features of corporate governance best practice, but that there remains further progress to be made in areas such as independence of directors, compensation, and correlation between shareholding and entitlement to seats on the board. The (...) article recommends legal reforms in order to enhance corporate governance in Jordan. (shrink)

In Slovenia, the collaborative economy is in the early stages of development. The collaborative economy became a popular topic in 2015 when the government intensified its efforts to initiate a debate on legal reforms that would better accommodate foreign collaborative economy companies in Slovenia. While in 2016, the government was actively working on the topic and eager to start the discussions on legal reform in line with the European agenda for the collaborative economy since 2018, the issue (...) has lost its momentum. After the Act Amending the Hospitality Act was adopted, the government has slowed down its efforts to create a regulatory framework conducive to the needs of the collaborative economy. Nevertheless, the practice is becoming more and more common, with several sharing initiatives surfacing in the past few years. Most collaborative economy services are not yet subject to taxation and regulation, one of the most pressing questions that will have to be answered in Slovenia is how to regulate and tax the collaborative economy. (shrink)

From the studies conducted, it may be seen in 2018 that the driving force behind the sharing economy in Bosnia and Herzegovina are not small entities that come together to use their spare capacity and gain some economic benefit from others. In the past several years, a set of legal reforms has been established for aspects of labour, taxes, and consumer protection in a collaborative economy. Recognising the potential, the Council of Ministers in Bosnia and Herzegovina also wants (...) to introduce sustainable production processes for converting biomass of harvested plants into useful wood and paper products. One of the biggest challenges is to develop a successful and reliable circular economy model. (shrink)

It is often argued that Kant’s understanding of the right to revolution is contradictory. On the one hand, he expresses enthusiasm for the French Revolution and the ideas on which it rests, while on the other, he openly denies the existence of a legal right to revolution. This paper aims to make Kant’s position plausible by showing that he does not deny the right to revolution in all states, but only in those that fulfill the purpose for which they (...) were created, which is to protect the rights and freedoms of all citizens. (shrink)

Legal concepts can sometimes be unclear, leading to disagreements concerning their contents and inconsistencies in their application. At other times, the legal application of a concept can be entirely clear, sharp, and free of confusions, yet conflict with the ways in which ordinary people or other relevant stakeholders think about the concept. The aim of this chapter is to investigate the role of experimental jurisprudence in articulating and, ultimately, dealing with competing conceptual inferences either within a specific domain (...) (e.g., legal practice) or between, for example, ordinary people and legal practitioners. Although this chapter affirms the widespread assumption that experimental jurisprudence cannot, in and of itself, tell us which concepts should be applied at law, it highlights some of the contributions that experimental jurisprudence can, in principle, make to normative projects that seek to prescribe, reform, or otherwise engineer legal concepts. Thus, there is more that experimental jurisprudence can normatively offer than has usually been claimed. (shrink)

Criminal juries make decisions of great importance. A key criticism of juries is that they are unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstanding their role, to engaging in impropriety such as internet research. Recently, some have even claimed that the use of juries creates injustice on a large-scale, as a cause of low conviction rates for sexual criminality. Unfortunately, empirical research into jury deliberation is undermined by the fact that researchers are unable to (...) study live juries. The indirect sources of evidence used by researchers suffer from various problems, the most important of which is dubious levels of ecological validity. Real jury research—studying live jury deliberation—is controversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral imperative to facilitate real jury research. (shrink)

The right to food is recognized as a basic right under international human rights law. The lack of implementation of the right is a challenge for societies around the world. The failures in implementation are leading stakeholder's to strongly advance more appropriate standards vis-a-vis the right to food. The concept of food sovereignty for instance has gained importance in this regard. The concept of food sovereignty is interpreted to be larger in scope than the right to food. Food sovereignty is (...) not limited to the making "provision" of food to the beneficiaries by the state. In addition, it also mandates the empowerment of communities by the adoption of policies to secure land, food production and consumption, etc. -/- In 2010, the UN Special Rapporteur on the Right to Food recognized the wider import of the right to food based on the concept of food sovereignty. The Rapporteur emphasised on the provision of land for instance as essential to right to food. The acceptance of food sovereignty as a benchmark for state performance is one of the most notable developments in the field of economic, social and cultural rights. This chapter discusses the role of the concept of food sovereignty, and how it is shaping international and domestic policy frameworks. (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)

Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...) material guilt or innocence and his juridical guilt or innocence. Someone is materially guilty if his actions in fact matched the conduct proscribed by the penal law. Someone is juridically guilty if he is found guilty by a tribunal, i.e., convicted by a judge or jury. When a tribunal convicts a innocent person or acquits a guilty person, the accuracy of its verdicts can be criticized. -/- There are three definitions of the reasonable person extant amongst courts and commentators: the reasonable person is either (1) a hypothetical ordinary, average person; (2) the embodiment of a community ideal; or (3) an embodiment of an objective ethical standard, i.e., ethical principles independent of community opinion. Nonetheless, after observing the circularity, vagueness, and lack of consistency in the definitions, wise courts and commentators have sometimes resorted to identifying the reasonable person with the judgment of the jury. -/- This piece argues that failure to settle on a fixed definition of the "reasonable person" in the criminal law of self-defense effectively conflates material guilt and innocence and juridical guilt and innocence at the doctrinal level. When courts do not clearly and consistently choose between standards one, two, and three, or when they expressly treat the reasonable person as a form of words standing in for the judgment of the jury, they make it conceptually impossible for observers outside the court system to apply a fixed, definite standard to assess the actual guilt of a person apart from the judgments of tribunals. -/- This paper's main purpose is to identify a conceptual knot rather than propose reforms. Still, it recommends two small changes meant to lift the confusion surrounding the reasonable person. First, it urges that courts expressly settle on one of the three definitions canvassed above. Second, it recommends that courts be mindful of the nature of the reasonable person standard and as such, be wary of treating conclusions about reasonableness as ordinary legal precedents, and wield the power of directed verdict aggressively to protect unpopular defendants from abuse by juries. (shrink)

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. -/- This Article also calls out potential character issues (...) with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. -/- Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle. I hope such a cable can help lift Langdell and his follies from legal education and the world. (shrink)

Instituţiile publice sunt reformate şi reorganizate după modelul managerial al firmelor, filosofia serviciului public este reformulată în termenii loialităţii faţă de interesele antreprenoriale (pentru profit) sau faţă de pasiunile cetăţenilor virtuoşi ce creează în jurul preocupărilor personale asociaţii civice, gestionând o parte din serviciile de interes public abandonate de statul capitalist. Pentru ca aceste lucruri să se întâmple, inflexibilitatea politicilor orientate către impunerea fără alternativă a aşa-numitului „consens de la Washington” trebuie să fie însoţită de o cât mai mare flexibilizare (...) a voinţei, aspiraţiilor şi vieţii umane. Cetăţenii statului neoliberal trebuie să se obişnuiască să trăiască departe de familie pentru a câştiga mai mult, pentru a obţine un loc de muncă sau pentru a nu îşi pierde poziţia profesională pe care au obţinut-o, trebuie să jongleze cu mai multe calificări, să fie deschişi către perspectiva înstrăinării unei bune părţi din timpul legal de odihnă în beneficiul companiei sau instituţiei publice pentru care lucrează, să construiască permanent strategii de salvare pentru eventualitatea în care angajatorul se va dispensa de serviciile lor etc. Tensiunile şi contradicţiile ce însoţesc transformările neoliberale sunt vizibile în numeroase domenii, dar sunt poate mai frapante în cele care au o îndelungată tradiţie a autonomiei organizaţionale şi care au obţinut privilegiul de a-şi construi practicile în conformitate cu reguli sau aprecieri endogene, în câmpul creaţiei culturale. Comunităţile universitare resimt din plin influenţele forţelor disruptive şi distructive ale re-structurării neoliberale. Observaţiile pe care le voi expune în cele ce urmează vor evidenţia câteva dintre acestea, fie că este vorba de manifestări generale, sesizabile la scară globală, fie că este vorba de forma pe care o iau ele în România. (shrink)

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think (...) it would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature and how genetics works. Human nature, like the nature of anything else, is a set of potentials to behave certain ways in given environments, not a nonsocial genetic something that inevitably produces the same result in any environment. To say that existing inequalities, are due to our genes, inalterable because heritable, ignores that genetic propensities may be differently manifested in different environments. Heritability has meaning only relative to an environment and a population and implies nothing about inevitability. A better sort of inegalitarian argument is that a proposed reform, given our nature, would be too costly even if possible. However, this sort of argument is too rarely supported by evidence and generally ignores the costs of existing inequalities. But egalitarians err in supposing that, if behavior is unconstrained by biology, the status quo is easily alterable. The environment may be extremely hard to change. Legal and policy debate should adopt a correct understanding of human nature as a set of propensities and ask of any proposed reform agreed to be otherwise desirable what and how alterable are its causes, genetic, environmental, or more accurately both. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, (...) Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

Regulatory governance frameworks have become essential building blocks of world society. From supply chains to the regimes surrounding international organizations, extensive governance frameworks have emerged which structure and channel a variety of social exchanges, including economic, political, legal and cultural, on a global scale. Against this background, this special issue sets out to explore the multifaceted meaning, potential and impact as well as the social praxis of regulatory governance. Under the notions rules, resistance and responsibility the special issue pins (...) out three overall dimensions of regulation and governance thereby providing a theoretical and conceptual framework for grasping the phenomenon of regulatory governance. This is combined with extensive case studies on a number of regulatory governance settings ranging from the World Bank to agricultural reforms carried by the International Transitional Administrations (ITAs) in Kosovo and Iraq as well as global supply chains and their impact on the garment industry in Bangladesh. (shrink)

In spite of his post-World War II works on international law, which seems more purely juridical, Hans Kelsen continues to put forward in his vast body of work an implicit – and sometimes even explicit – juridical objectivism and pacifism. Especially before and during the second World War he makes – by means of many moral-political writings – an effort for a more effective assurance of international peace. The fact that Kelsen regards the law as the pre-eminent means to achieve (...) the end of peace, is – in view of the tradition running from Hobbes to Kant – still not very innovating. But the primary and central role he assigns to the judiciary in order to guarantee international peace is on the other hand really original. To bring out Kelsen’s juridical objectivism and pacifism, I restrict myself in this article to his plea before and during the second World War for the judicial primacy in the international legal order. In that plea, which is spread over many writings and founded by several arguments, I distinguish however three main convincing arguments – namely an evolutionary, a technical and a moral-political argument – for the establishment of an international court with compulsory jurisdiction as the ‘guardian of international peace’. The fact that Kelsen’s original plea is still relevant to our times, is already evident from the post-World War II UN-system of peace-enforcement, which still functions little satisfactorily and of which the existing plans of reform go no further than strengthening the position of the Security Council, the current hardly effective ‘maintainer of world peace’. (shrink)

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously (...) form their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all cititizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- (...) As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

This essay will examine the role of cultural memory in an age of global interconnection. It will discuss how the traditional idea of culture is threatened by the “culture industry,” information technology and the media. In the West, there seems to be a loss of culture’s function as an engine of change and reform. But throughout the history of South East Asia (and especially in Indonesia) one sees a both a process of appropriation of ideas from the outside, and at (...) the same time, the maintenance of a deeper cultural identity that is resistant to complete control. It is an unconscious memory – or a cultural reflex – present within the languages and stories and rationalities. I will explain this with reading of Michel de Certeau. And I will show how the Wayang story of the “Death of Semar” is emblematic of this idea. The awareness of these old processes of appropriation and resistance are extremely important in our age of global networks of power that attempt to impose, various religious, political, financial and legal structures. (shrink)

This article explores a concept of artistic transgression I call aesthetic disobedience that runs parallel to the political concept of civil disobedience. Acts of civil disobedience break some law in order to publicly draw attention to and recommend the reform of a conflict between the commitments of a legal system and some shared commitments of a community. Likewise, acts of aesthetic disobedience break some entrenched artworld norm in order to publicly draw attention to and recommend the reform of a (...) conflict between artworld commitments and some shared commitments of a community. Considering artistic transgressions under the concept of aesthetic disobedience highlights often-overlooked features of modern artworld practices. Most significantly, it draws attention to the deliberative participation of a wide variety of citizens of the artworld, including not just artists and performers but also members of audiences, in the transformation of the rules and boundaries of the artworld itself. (shrink)

Cosmopolis A Review of Cosmopolitics -/- 2015/3-4 -/- Editorial Dominique de Courcelles & Paul Ghils -/- This issue addresses the general concept of “spirituality” as it appears in various cultural contexts and timeframes, through contrasting ideological views. Without necessarily going back to artistic and religious remains of primitive men, which unquestionably show pursuits beyond the biophysical dimension and illustrate practices seeking to unveil the hidden significance of life and death, the following papers deal with a number of interpretations covering a (...) wide field extending from belief to theory, from emotions to concepts, from the wisdom of personal experience to the most sophisticated doctrines. Spirit and spirituality are indeed many-faceted notions. They may refer to the intricate world of the interacting spirits which inhabit living beings in animistic traditions, without excluding a “grand force” linking human beings within a dynamic whole on which their very existence rely . They also bear upon more atomistic and either/or approaches of Western philosophy, which have become embodied in Cartesian dualism against a monotheist background, to the point of freezing the essence of individuals and culminating in the extreme individualism that characterizes our contemporaries. However, this equally refers to the opposite conception of materialism, across times and cultures, from ancient India and Greece (Cārvāka, originally known as Lokāyata, or some Buddhist doctrines for the former, Democritus or Lucretius for the latter) to more contemporary materialistic schools, whether modern or postmodern. -/- The following papers look at the contrasting forms of the philosophy and spirit of the human factor set into a whole, with no artificial disjoint between the psychical and the physical levels, as Wittgenstein put it: “And how can a body have a soul?”. This approach is not unrelated to the notion of anthropocene examined in a recent issue of Cosmopolis, with provides another comprehensive framework open to a spiritual life emerging from the very environment that generated it. -/- *** The first section of this issue was edited by Dominique de Courcelles, director at the National French Research Centre (CNRS), whom we wish to thank for collecting relevant studies relating to the religious and political questions, with a view to focusing on the war of ideas inevitably waged behind images, concepts and perceptions, taking an asymmetrical approach. To the extent that they are mindful of global/local interactions and include representations, opinions and beliefs, such disciplines as philosophy, philology, history and social sciences can provide useful studies accounting for new practices in geopolitics and a fair diplomacy. -/- In her introduction, Dominique de Courcelles first poses the question of how the religious and political spheres interrelate, with their corresponding religious demands and humanistic values. She then suggests that the right question today may be breaking with the philosophy of human rights concerned with the defense of human beings against the hazards of arbitrary politics or the instrumental use of religion, in favour of a fair philosophy of humankind, a new humanism. This would consist in recognizing a common loyalty of all towards one interhuman, not only interstate community, to protect it from both the autonomy demanded by individuals and the instrumental use of minorities. -/- Considering the fact of diversity, so important today in terms of both politics and religion, Abdelhai Azarkan looks at the conditions under which tolerance could obtain the double status of right and duty. He revisits to two philosophers, John Locke and Voltaire, who thought about it from the historical reality of religious wars. The former made tolerance into a right, basing his analysis on the political-legal level, while the latter saw tolerance as a duty, from an analysis based on ethical-political criteria. -/- Mathieu Guidère examines what he calls semantic denominationalism, a term which implies religious attributes and identities, whichever national loyalties or personal belonging they may have at the same time. Since the early 2000s, thie phenomenon has expanded tremendously, compounded by the “war on terror” and the over media-oriented terrorist actions. Denominational expressions act as formal names for ordinary and high-profile players in domestic and foreign policies of democratic states. These systems reveal a receding secularization, while the powerful comeback of religious identities signals the failure of nation-states and the weakening of the humanist spirit. -/- Barbara De Poli retraces the history of a contemporary jihadism claiming its Islamic essence and asserting the truth of genuine coranic principles via the war on infidels, with a view to restoring the Caliphate. After defining the term jihad, she shows that even if this contemporary jiadism is spreading in the Muslim world, it radically departs from Islamic law and the received use of the term jihad, in so far as it is rooted in the early radical thinking of Islamic ideologues in the 20th century, starting with with Hassan al-Banna, the founder of the Muslim Brotherhood. This current has been fueled by by international conflicts since the outbreak of the war in Afghanistan, in which the so-called Western countries bear a major responsibility. -/- Abderrazak Sayadi starts from the Tunisian experience to ask the question of humanist values and democracy within the relationships between the religious and political spheres. As a historian of religion, he is brought to demystify certain islamic principles and to paying attention to the reform of law, seeing the separation of religion and politics as a precondition to a successful democratic gamble and the establishment of a renewed humanism. -/- Dominique de Courcelles reminds us that getting a better knowledge of narrations and words makes it possible to better understand how logical and rhetorical thinking works for those who wage an asymetriccal war, re-enchanting and mystifying the world to better take control. As soon as 1932, an exchange of letters between Einstein and Freud made it clear that, in order to free man from fatality and war, education understood as culture was fundamental. Such illustrations as the exécution of Oussama ben Laden and the Caliph’s speech in Mossoul show that a premiminary analysis of images and words is essential to a fair diplomacy conducted by people from civil society, whose culture and wisdom allow justice and force to speak together and better resist war. -/- Marcel Boisard thinks that on the day the guns fall silent, exhausted by war, we will not return to the state borders that have prevailed for a century as an outcome of the Sykes-Picot agreement of 1916. It is time to prepare the “day after”, which will be a huge challenge. To this end, a summit of Middle-East nations is urgently needed to globally decide the fate of those peoples. On the condition that we know who the enemy is and accept to name it, to understand the history of the countries, groups and alliances, and to question any false or self-interested sense of certainty. -/- *** In the second section, Paul Schafer provides the author’s experiences to explain how culture, from the artistic to the biological, has the power to to open the doors to spirituality, from the inner self to the global environment. He asks himself whether a relative permanence of spirituality can arise from the specific moments that characterize it. Laurent Ledoux synthesizes the conclusion of a symposium held on 22 January 2015 on the links between philosophy and management, on the basis of the spiritual dimension conceived as “natural” and the answers it may suggest to the issues that face the organizations in a “contemporaniversal” world. Jacques Rifflet makes that question in a secular perspective, based on the wellsprings of personal commitment before it can be caught by any religious creed or scientific theory. In this sense spirituality, in alliance with reason, both inspires human consciousness and illuminates its destiny. Sami Aldeeb asks himself whether Islam can be reconciled with human rights. Caught between the belief in an absolute and final Word descended from the sky, and evidence showing that any religion is the creation of a given culture and a society situated in time and space, the Makkan and … contexts et médinois call for differentiated, if not opposite answers and exegeses. Bernard Carmona provides the outline of a dialogical framework, which is known to be a feature of debates between the various philosophical schools of classical India, exemplified here by the transdisciplinary perspective of debates within a Buddhist context. *** The articles not focused on the previous topic include a study by Landry Signé on China’s strategy, competing with the United States to control African resources. The author deals with the specific case of China’s rapprochement with Southern Sudan since Sudan was broken up. In the last paper, Goran Fejić and Rada Iveković, return to the essential role that women should play, and comments upon the role of some international legal instruments related in particular to the elimination of all forms of discrimination. The perspective is transnational and transethnic and is based on secular criteria, as regards nation-building and more generally society-building. Considering the persistence of widespread violence, whether in times of armed conflict or in times of peace, the question remains whether it is possible to fully implement rights and justice instruments. (shrink)

This is a review and critical commentary on Michael Plaxton's 2015 book, Implied Consent and Sexual Assault, in which he proposes that the legal definition of sexual consent be amended to permit sexual partners to define the terms and conditions of sexual consent in accordance with private "normative commitments" between themselves. The proposed "reform" is intended to permit an individual to agree to be a party to sexual activity that would otherwise constitute sexual assault under Canadian law. For reasons (...) explained in the review, this reviewer concludes that Plaxton's proposal and the rationale he presents in support of its adoption are unpersuasive. (shrink)

In a recent opinion paper, it was argued that individuals with multiple retractions or a record of academic misconduct should not serve as editors, including as editors-in-chief, on the editorial boards of scholarly or academic journals. As a first step towards appreciating how such a policy could be applied in practice, the presence of 30 individuals listed on the Retraction Watch Leaderboard on editorial boards was screened. Six cases are highlighted to gain an appreciation of the potential reputational risks that (...) journals and publishers might incur by including individuals with a tainted academic record on editorial boards. Given the reputational, legal and other risks associated with this type of assessment and decision, more formal positioning and guidance are needed by global ethics policy-related bodies such as COPE, the ICMJE, and the CSE, even more so in journals that claim to follow these organizations’ ethical guidelines. (shrink)

Following the storming of the US Capitol building, Donald Trump became digitally toxic, and was deplatformed from Facebook, Instagram, Twitter and YouTube—as well as a host of other social media networks. Subsequent debate has centred on the questions of whether these companies did the right thing and the possible ramifications of their actions for the future of digital societies along with their democratic organisation. This article seeks to answer this question through examining complex, and seemingly contradictory notions (legality and the (...) protection of public interest vs issues of democratic legitimacy and digital sovereignty) and argues that reform is needed to determine who, in the future, will control the infosphere—and how. (shrink)

In this article I analyse one of the most important claims of the neoliberal policy prescriptions for Central and East European states in the early 1990s, that 'communist' property should be privatised. My claim is that this neoliberal policy prescription was based on a number of false assumptions about what it was 'communist' property, and a number of false assumptions about communist law. As a result of these assumptions, the post-communist process of privatisation was plagued by a host of unintended (...) and negative consequences. Nevertheless, based on these false assumptions, the neoliberal ideology was capable to portray the privatisation as 'rights based' and essentially a democratic process. I debunk these pretenses by showing that the reality of 'communist property' was totally different than that assumed by neoliberal policies. The distinctiveness of communist arrangements of property resided not in absence of private property, which was tolerated under communism, but in the organisation of property as an administrative matter, based on unwritten operational rules. Moreover, the communist corporate law was more or less the similar with the 'western corporate' law, so a simple change of formal law would not lead to the transformation of communist property into private property. If a transformation was desired, what needed to be changed was the operational rules accordingly to which the communist property operated. However, this was a level of 'reform' totally ignored by the neoliberal policies, with the result that post privatisation these operational rules continued to apply. The result was the great enrichment of the former communist managers who were able to benefit 'privatisation' at the expense of the public, in a process which was not 'right based' or 'democratic.'. (shrink)