The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, (...) this article aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis. (shrink)

This paper discusses the legal aspects of the activities of transnational corporations. The relevance of the subject matter is determined by the significant impact exerted by transnational corporations on the world economy in general and on the economic situation of the country in which such corporations are registered as a subject of legal form of ownership in particular. Quality functioning of transnational corporations is an effective factor for the formation of sustainable development. This study reveals and determines (...) the relationship between the scale of activity of transnational corporations and their legal status within the framework of both single countries and entire economic communities, the individual subjects of law of which are transnational corporations. The practical significance of this study lies in the possibility of identifying and stating key aspects that play a significant role in assessing the practical activities of transnational corporations in the context of existing legal law with the ability to use the identified patterns in specific legal practice. The results of this study can be of significant practical importance for employees in the field of legal support for the activities of transnational-scale corporations, who are faced with the need to deeply analyse the legal aspects of the activities of these organisations and provide management of such structures with timely, highquality legal recommendations regarding the correction of the activities of these organisations in the context of the existing legal field. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within (...) the kinds of arguments that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy 29 (...) // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

Artificial intelligence (AI) is increasingly expected to disrupt the ordinary functioning of society. From how we fight wars or govern society, to how we work and play, and from how we create to how we teach and learn, there is almost no field of human activity which is believed to be entirely immune from the impact of this emerging technology. This poses a multifaceted problem when it comes to designing and understanding regulatory responses to AI. This article aims to: (i) (...) defend the need for a novel conceptual model for understanding the systemic legal disruption caused by new technologies such as AI; (ii) to situate this model in relation to preceding debates about the interaction of regulation with new technologies (particularly the ‘cyberlaw’ and ‘robolaw’ debates); and (iii) to set out a detailed model for understanding the legal disruption precipitated by AI, examining both pathways stemming from new affordances that can give rise to a regulatory ‘disruptive moment’, as well as the Legal Development, Displacement or Destruction that can ensue. The article proposes that this model of legal disruption can be broadly generalisable to understanding the legal effects and challenges of other emerging technologies. (shrink)

This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of (...) law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

In this paper, we provide an analysis of the concept of legal personality and discuss whether personality may be conferred on artificial intelligence systems (AIs). Legal personality will be presented as a doctrinal category that holds together bundles of rights and obligations; as a result, we first frame it as a node of inferential links between factual preconditions and legal effects. However, this inferentialist reading does not account for the ‘background reasons’ of legal personality, i.e., it (...) does not explain why we cluster different situations under this doctrinal category and how extra-legal information is integrated into it. We argue that one way to account for this background is to adopt a neoinstitutional perspective and to update the ontology of legal concepts with a further layer, the meta-institutional one. We finally argue that meta-institutional concepts can also support us in finding an equilibrium around the legal-policy choices that are involved in including (or not including) AIs among legal persons. (shrink)

This piece of writing has investigated the legal and institutional frameworks regulating rural land governance in Ethiopia by taking the comparative analysis of rural land governance of other African countries, namely Ghana, Kenya and Uganda. The best experience of these countries on the legal and institutional frameworks is examined so as to draw a lesson for the Ethiopian land governance system. The article has employed doctrinal legal research approach and rural land legislations of the country were investigated (...) in great detail. The article has also comparative aspect because, it has drawn lessons from the legal regimes of other African countries that have best experience on the legal and institutional frameworks governing rural lands. Ethiopia can draw many good practices from Ghanaian, Kenyan and Ugandan rural land governance. Rural land legislations in these countries have given sufficient room for the protection of customary land rights and these rights are equally compensated at the time of compulsory acquisition of land use rights. In addition to these, land legislations in these countries compensate owners not only for the value of the produce upon their land but also for the market value of the land taken, cost of disturbance and other damage like severance and injurious affection. So, this can be a good lesson for Ethiopia in order to consider the life of individuals whose land is being expropriated but unable to rehabilitate to their past economic situation after compulsory acquisition. Ethiopia can also acquire a good lesson from these countries on the mode of institutional arrangement governing rural land administration is concerned. In all these African countries, the mandate to administer land is arranged at the ministry level at the apex and there are also other independent sector based institutions up to the lowest administrative hierarchy. Ethiopia, that governs land at the directorate level under the Ministry of Agriculture at the top and bureau of land and environmental protection at the middle and land and environmental protection offices/departments at the lower administrative level can capture this good practice from Ghana, Kenya and Uganda in order to give sufficient room for this vital economic resource that is livelihood for mass populations of the country. (shrink)

In my previous paper I argued that if in vitro fertilization (IVF) is legal and practiced there is no moral ground to object to legalization of preimplantation genetic diagnosis (PGD). My opponent raises an objection that my paper “fails to address the ethical argumentation of one key opponent of IVF – the Catholic Church”. In this reply I show that her/his thesis that embryos created during IVF are in ‘ethical limbo’ and “fall outside the moral universe of Christian ethics” (...) does not undermine my argumentation and masks the serious problem Catholics have with the moral status of early embryos. (shrink)

When Hegel first addresses moral responsibility in the Philosophy of Right, he presupposes that agents are only responsible for what they intended to do, but appears to offer little, if any, justification for this assumption. In this essay, I claim that the first part of the Philosophy of Right, “Abstract Right”, contains an implicit argument that legal or external responsibility (blame for what we have done) is conceptually dependent on moral responsibility proper (blame for what we have intended). This (...) overlooked argument satisfies the first half of a thesis Hegel applies to action in the Encyclopaedia Logic, namely, that the outer must be inner, and thus provides a necessary complement for his more explicit treatment of the second half of that thesis, that the inner must be outer. The claim that agents are only responsible for what they intended to do might appear, at first, to risk conflating legal and moral responsibility and to lack the necessary means to deal with the phenomenon of moral luck, but I argue that if it is properly situated within the whole of Hegel's philosophy of action it can be saved from both of these consequences and so take its place as an essential component of Hegel's full theory of moral responsibility. (shrink)

In this article we examine the role of Entscheider (decision-makers) in the German asylum procedure, both legally and ethical. As the responsibility for deciding on asylum applications lies exclusively with them, their significance for the German asylum procedure can hardly be underestimated. However, over the last few decades the situation of Entscheider changed significantly: While the number and complexity of the cases they have to decide on has increased due to the growing immigration, the requirements for their education have (...) been lowered, owed to critical amendments to the relevant law. We analyze how the law currently defines the role of Entscheider, whether the legal framework is constitutional, and what modifications morality requires. Although the law defining their role seems to be constitutional, Entscheider’s education must be improved and they must be entrusted with the hearing of the applicants to meet what morality requires, we conclude. DOI: 10.17879/95189429199. (shrink)

Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist position—or omits probative (...) evidence. Situationism is, after all, presented as antithetical to virtue ethics. -/- This essay provides a virtue ethical defense of character evidence exclusion rules. We show that existing virtue ethical rebuttals to situationism themselves support prohibitions on character evidence; even if behavior arises from stable character traits, character evidence should be prohibited. In building our case, we provide a taxonomy of kinds of character judgment and reconcile the ubiquity and reasonableness of character judgments in ordinary life with the epistemic legitimacy of character evidence prohibitions in law. (shrink)

"[A]n orderly transfer of responsibility back to Britain, which has exclusively governed Northern Ireland for most of the past three violent decades" is a phrase that ended a recent world news brief in a Pittsburgh newspaper. To the uninitiated, this may look like the same old Ireland; in fact, it may not even look like news. Certainly, it is not quick change [...]. But if we unpack this simple statement, we find that there is much that is new here, and (...) much that is of interest to those who might want to approach things Irish from a legal perspective. Indeed, approaching Ireland from a legal perspective may be precisely what is new. While our research has found much discussion of the social, political and historical aspects of Irish culture, there is not much that would both qualify as legal scholarship and is up-to-date in a situation that experiences significant changes daily. (shrink)

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule (...) application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper – Discretion – in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart’s work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart’s work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart’s year as a visiting professor. Hart’s Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history. (shrink)

Bangladesh is a signatory of the International Labor Organization’s two landmark conventions on child labor – No.138 on Minimum Age and No. 182 on the Worst Forms of Child Labor. The Bangladesh Labor Act, 2006 prohibits the employment of any child in child labor’s worst forms, including hazardous ones. To eliminate hazardous child labor (HCL) from the country, the government published a list of 38 activities/processes as hazardous to children. However, emerging data suggest that HCL still exists widely in the (...) country, and the COVID-19 pandemic has worsened the situation. The review of existing evidence and relevant reports evinces that the country’s current policies inadequately address the status and remedies of HCL. Based on the author’s desk review, observational experience and visual work, this paper evaluates the competence of the hazardous labor list and current legal protections for children. The findings suggest that lack of implementation, reporting and monitoring opens the floodgate for employers to informally employ children in hazardous work and take advantage of the legal lacunae. Destitute families and street children lack citizenship documents and become easy victims of exploitative employment. The analysis informs that the country’s existing legislative framework and protection policies are critically inadequate to cease HCL in urban areas. (shrink)

The emerging neuroscience of psychopathy will have several important implications for our attempts to construct an ethical society. In this article we begin by describing the list of criteria by which psychopaths are diagnosed. We then review four competing neuropsychological theories of psychopathic cognition. The first of these models, Newman’s attentional model, locates the problem in a special type of attentional narrowing that psychopaths have shown in experiments. The second and third, Blair’s amygdala model and Kiehl’s paralimbic model represent the (...) psychopath’s problem as primarily emotional, including reduced tendency to experience fear in normally fearful situations, and a failure to attach the proper significance to the emotions of others. The fourth model locates the problem at a higher level: a failure of psychopaths to notice and correct for their attentional or emotional problems using “executive processes.” In normal humans, decisions are accomplished via these executive processes, which are responsible for planning actions, or inhibiting unwise actions, as well as allowing emotions to influence cognition in the proper way. We review the current state of knowledge of the executive capacities of psychopaths. We then evaluate psychopaths in light of the three major philosophical theories of ethics, utilitarianism, deontological theory, and virtue ethics. Finally, we turn to the difficulty psychopath offenders pose to criminal law, because of the way psychopathy interacts with the various justifications and functions of punishment. We conclude with a brief consideration of the effects of psychopaths on contemporary social structures. (shrink)

Lorenzo Peña y Gonzalo has developed a logic, a legal philosophy and a political thought of a deeply neo-Leibnizian nature. The neo-Leibnizian mark characterizes both his philosophical thesis and the terms has coined in his contributions to the theory of knowledge, theodicy, ontology, political philosophy, etc. Above all, this mark is present in his conception of Law and of the logic of legal situations. Under the light of the political problems and crossroads of the present time, this interview (...) allows for an approach to some of the intellectual findings in his work. (shrink)

Introduction. Taking into account the priorities of the state policy in the field of economic and innovative development of the Perm region, assessment of the regional potential of the digital economy, the strategic importance of economic activities implemented by SMEs for the economy of the region and the country as a whole, the actual impact of the norms on the instruments of development of small and medium-sized enterprises in the Perm region is assessed. The purpose of this study is to (...) improve the regional regulatory platform of tools for the development of small and medium-sized businesses in the Perm region in order to gain the status of an investment-attractive region in the digital economy of the Russian Federation, taking into account the Strategy of the information society in the Russian Federation, which will ultimately contribute to the development of e-business in the Perm region, rehabilitation and competitiveness of the economy of the Perm region in the global market. Methodology. The General methodological basis of the study was the dialectical- materialistic method of cognition of legal reality, which allowed to study the tools of development of small and medium-sized businesses in the Perm region in their development, to consider the problems of tools for the integrated development of small and medium-sized businesses in the Perm region, taking into account the changed socio-economic conditions in inseparable unity with other related tools relevant to the needs of digitalization of society. Such universal scientific methods as analysis and synthesis of doctrinal and normative materials were used in the work. In addition, special legal methods were used: the method of legal modeling, which allows to design possible legal situations using digital tools for the development of small and medium- sized businesses in the Perm region; the method of systematic interpretation used in assessing the actual impact of regional norms on the tools of development of small and medium-sized businesses in the Perm region. Results. The article proposes a new tool for the development of SMEs as a regional electronic platform for the promotion of goods, works and services of SMEs in the Perm region. Attention is paid to the level of digital literacy of SMEs and consumers of their goods, works and services: the conclusion about the lack of digital competence. Conclusion. It is necessary to improve the regional regulatory platform taking into account economic trends: it is important to introduce digital competencies everywhere, including at the professional level in relation to SMEs in the Perm region, in order to increase the business activity of young people and other representatives of the working population. As for the actual introduction of new tools for the development of small and medium-sized businesses in the Perm region, we propose that the regional legislator develop a new electronic information platform at the expense of the regional budget to promote goods, works and services sold by SMEs in the Perm region. We believe that the measures proposed by us to enhance the economic activity of SMEs can be perceived by other regions. (shrink)

In my paper I discuss the argument that the absence of the legal possibility to contract same-sex marriages is discriminatory. I argue that there is no analogy between the legal situation of same-sex couples and African-Americans, women or disabled persons in the nineteenth century. There are important natural differences between same-sex and different-sex couples that are good reasons for the legal disparities between them. The probability of having and raising children is one of them. Therefore, demanding (...) that same-sex couples have rights similar to those that married couples currently have in Poland and justifying that claim by alleged discrimination is neither correct nor fair. (shrink)

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

Though it is evident that seriously and irreversibly defective infants are born in Poland, as well as in other socialist countries we do not know really what is the existing medical practice concerning their treatment or non-treatment. No representative empirical investigations were conducted with respect to it. We believe, however, that for the majority of doctors this is not a genuine moral problem at all. They feel simply morally, legally, and professionally obliged to treat those unhappy creatures without any regard (...) to economic and moral cost of treatment. It is highly plausible that this attitude is common to all socialist countries. All the factors mentioned in this paper (religion, ideology, medical education, paternalism, remembrance of Nazi doctors’ criminal practice, the legal situation, and the health care system) have a direct influence on the moral beliefs and attitudes of doctors in socialist countries. And even in those countries in which there are different religious traditions (like the Soviet Union, Yugoslavia, or the German Democratic Republic) there is a deeply-entrenched belief that preserving any human life is the principal and absolute duty of a doctor, one which must be fulfilled at any cost. We should also keep in mind that in this part of the world hardly any distinction at all is made between euthanasia and ordinary murder. (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)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the (...) constraint that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

While seeking novel food sources to feed the increasing population of the globe, several alternatives have been discussed, including algae, fungi or in vitro meat. The increasingly propagated usage of farmed insects for human nutrition raises issues regarding food safety, consumer information and animal protection. In line with law, insects like any other animals must not be reared or manipulated in a way that inflicts unnecessary pain, distress or harm on them. Currently, there is a great need for research in (...) the area of insect welfare, especially regarding species-specific needs, health, farming systems and humane methods of killing. Recent results from neurophysiological, neuroanatomical and behavioral sciences prompt caution when denying consciousness and therefore the likelihood of presence of pain and suffering or something closely related to it to insects. From an animal protection point of view, these issues should be satisfyingly solved before propagating and establishing intensive husbandry systems for insects as a new type of mini-livestock factory farming. (shrink)

In this introduction, I briefly summarize Sophia Moreau's Faces of Inequality. I situate her monograph within two highly contemporary bodies of literature — relational egalitarianism and discrimination theory — to show how it provides important insights for understanding both what it means to treat others as equals in society and how to define wrongful discrimination. Moreau's work on discrimination is of great relevance for philosophers and socio-legal theorists alike as the commentaries from the symposium contributors demonstrate, including Dale Smith, (...) Pablo Gilabert, Andrea Sangiovanni, Daniel Viehoff, Jessica Eisen, Alysia Blackham, and Iyiola Solanke. (shrink)

The article examines the issue of a necessary connection between the phenomena of law and morality. According to legal positiv- ism, morality is not a criterion of the legitimacy for legal norms. The law can have any content including absolutely immoral (the so-called “separability thesis”). Law issues are not connected with discussing the moral merits of a possible judicial decision. They are only closely related to studying various purely legal phenomena like precedents, judicial discretion, legislatures, etc. The (...) ascriptive legal statements theory proposed by the Oxford School of Law (Herbert Hart, Joseph Raz, and others) serves as the core of contemporary legal positivism. This theory is based on the notion of defeasibility for legal responsibility without any moral reasoning. There, phenomena of law are interpreted as purely linguistic, not social constructions. Analysis of pure law language should provide all the needful tools to extract hidden meaning from any legal norm. This analysis does not require going beyond the legal language since it does not describe any real situations in the world, but merely expresses legal requirements, allowing to legally qualify some observed events. It completely eliminates any references to moral principles from the analysis of legal language. However the critical reconstruction theory of ascriptive legal statements shows limitations of the legal positivism’s analytical approach to the phenomena of law. The example of a fictitious legal collision offered demonstrates limitations of the legal positivism approach to the understand- ing of law phenomena. This collision is a complex conceptual mix of Frankfurt-style examples and imaginary situations in the Trolley Problem widely known in analytical ethics. It clearly demonstrates the possible paradox of a law judgment in situations where conditions for the recognition and cancellation of legal liability are the property of two different (not necessarily openly contradictory) legal norms. It can serve as a strong argument in favor of contemporary theories of natural law (Lon Fuller, John Finnis, Ronald Dworkin, and others), which questioned the possibility of creating a theory of pure law. They considered it senseless and impossible to draw any strict border between moral and legal norms. Immoral law cannot have the particular property of creating a moral obliga- tion to follow such like a law. Law cannot be built on legality only, and the answers to all significant legal questions should be found in moral theories. (shrink)

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS. -/- The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view (...) is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into an unpalatable moral relativism on which there is no non-arbitrary basis between a justice that underwrites forms of domination such as slavery and a justice that condemns such forms of domination is equally powerful and compelling. I show that there is a way to harmonize both views that is subject to empirical test. -/- First I show that the most widely accepted and influential formulation of liberal justice, John Rawls' Justice as Fairness, in. e.g, A Theory of Justice, cannot avoid the relativistic challenge because it would not be accepted, as a matter of sociological fact, by real people in a divided society once the "veil of Ignorance" is removed and real people step out from the Original Position. To put it differently, different reflective equilibria are inevitable in a divided society. Given the weight that Rawls properly puts on the realizability of a conception of justice and its stability in practice, this is a fatal objection. There can be no divided society that is "well ordered" in Rawls' sense, governed by a shared conception of justice and known to be so governed. -/- I then turn to the most powerful statement of the CLS view, Milton's Fisk's relativistic account in The State and Justice. For Fisk, justice is a compromise between what the dominant groups can compel and what the the subordinate groups will acquiesce to., There is no one such compromise in any given situation, so the account is in that sense relativistic, but more deeply, it is relativistic in that it offers no non-arbitrary, non-question begging way to choose between the official justice of, e.g., a slaveholding society and and the radical justice of the slaves, which has no place for slaveholders as a group or slavery as an institution.All that Fisk can offer is an arbitrary existential choice: I'm with the slaves. (Or the slaveowners.) Most of us would find this disconcerting or even unacceptable. -/- I show that Fisk's general sort of account can be modified to allow for an non-arbitrary choice. Given general facts about human nature, societies based on domination will produce resistance that over the long run will diminish or eliminate various forms of domination. Through a sort of ratchet effect, rights won will be hard if not impossible to reverse. Societies embodying forms of domination can therefore be compared on dimensions of stability: the more domination, the more resistance, and the less stability. Such societies are inferior on the dimension of justice to more emancipatory society on the terms of both kinds of justice, official and radical. -/- This is not question begging because regimes of domination incorporate stability no less than more emancipatory social orders. The choice between official justice embodying domination and radical justice that does not is not arbitrary because it is based on a shared commitment to long term stability. This offers an empirical test of which social orders are more justice, and a prediction that over time, domination will tend to decrease. (shrink)

Dans l’opinion publique, la migration « irrégulière » est associée à l’entrée et au séjour non autorisés. Un nombre croissant d’études indiquent toutefois qu’elle résulte de la production de catégories légales de séjour autorisé. Le présent chapitre enrichit cette littérature, en montrant comment la construction de la catégorie légale de travail autorisé est productrice d’immigration « irrégulière ». En effet, la multiplication des conditions d’accès à l’autorisation de travail a pour effet de priver de droit au séjour des personnes autrement (...) en situation régulière. La France, située en tête de classement en matière d’obligations de quitter le territoire et en fin de classement en matière d’immigration professionnelle, représente un cas d’école parmi les pays de l’Union Européenne. (shrink)

There are often public calls to codify moral sentiments after failures to help others, and recent tragedies have renewed interest in one’s legal duty to aid another. This Article examines the moral underpinnings and legitimacy of so-called “Bad Samaritan” laws—laws that criminalize failures to aid others in emergency situations. Part I examines the theoretical backdrop of duties imposed by Bad Samaritan laws, including their relationship with various moral duties to aid. This leads to the analysis in Part II, which (...) examines two related questions that are raised when moving from moral to legal duties: First, on what ground does the state have the authority to dictate that one’s needs should be met in the way specified by a particular legal duty? Second, does a special relationship exist that legitimizes the establishment of such legal duties? (shrink)

Patients in Quebec can legally obtain medical assistance in dying (MAID) if they are able to give informed consent, have a serious and incurable illness, are at the end of their lives and are in a situation of unbearable suffering. Since the Supreme Court of Canada’s 2015 Carter decision, access to MAID, under certain conditions, has become a constitutional right. Quebec physicians are now likely to receive requests for MAID from their patients. The Quebec and Canadian laws recognize a (...) physician’s right to conscientious objection, but this right is contested both in the medical ethics literature and in the public sphere. This paper presents the results of a qualitative study conducted with twenty Quebec physicians who did not integrate MAID into their medical practice, either because they were opposed to or deeply ambivalent about MAID. The interviews aimed to explore the reasons – religious and secular – for opposition to or ambivalence towards MAID. The secular reasons given by participants were grouped into four main categories: 1) the ends of medicine and professional identity, 2) the philosophy of palliative medicine and resource allocation in palliative care, 3) benevolent paternalism, the “good death”, and the interests of future selves, 4) the risk of a slippery slope and the protection of vulnerable people. (shrink)

Implementing machine learning in law would transform current legal orders, based on the rule of law. The result would be “legal singularity”: an order based on “precisely tailored laws, specifying the exact behaviour that is permitted in every situation”. According to its proponents, this would promote justice and legal certainty. Through a comparison with the Platonic proposal of the philosopher-king, this article defends that, even if the aforementioned values were to be promoted, the inherent opacity of (...) machine learning systems would hamper the public scrutiny of the resulting normative order, affecting its legitimacy. Thus, current political communities must deliberate about the benefits and drawbacks of legal singularity and must reflect on the use of artificial intelligence in law. (shrink)

Arguably, ethical guidelines and medical laws on medical confidentiality have fallen short of extrapolating the methodology for dealing with potential ethical complexities in its practice. This drawback has made it difficult for physicians to prevent harm from occurring if it has not yet happened, remove harm if it has already taken place, or minimise harm if it is unavoidable. Therefore, this article attempts to outline certain principles in the form of a framework to govern the management of confidential information in (...) light of Islamic legal maxims. This effort is meant to help health workers to deal with conflicting situations, with reasonable care given to those at risk, while maintaining therapeutic trust and professionalism. The notable significance of this framework is that it is structured after identifying the potential harms in the protection and disclosure of medical confidentiality in selected cases from patient's, doctor's and third party's perspectives and addressing each of them with due importance. (shrink)

The philosophical, legal, and HCI literature concerning artificial intelligence (AI) has explored the ethical implications and values that these systems will impact on. One aspect that has been only partially explored, however, is the role of deception. Due to the negative connotation of this term, research in AI and Human–Computer Interaction (HCI) has mainly considered deception to describe exceptional situations in which the technology either does not work or is used for malicious purposes. Recent theoretical and historical work, however, (...) has shown that deception is a more structural component of AI than it is usually acknowledged. AI systems that enter in communication with users, in fact, forcefully invite reactions such as attributions of gender, personality and empathy, even in the absence of malicious intent and often also with potentially positive or functional impacts on the interaction. This paper aims to operationalise the Human-Centred AI (HCAI) framework to develop the implications of this body of work for practical approaches to AI ethics in HCI and design. In order to achieve this goal, we take up the analytical distinction between “banal” and “strong” deception, originally proposed in theoretical and historical scholarship on AI (Natale in Deceitful media: artificial intelligence and social life after the turing test, Oxford University Press, New York, 2021), as a starting point to develop ethical reflections that will empower designers and developers with practical ways to solve the problems raised by the complex relationship between deception and communicative AI. The paper considers how HCAI can be applied to conversational AI (CAI) systems in order to design them to develop banal deception for social good and, at the same time, to avoid its potential risks. (shrink)

This paper develops the ontology of space objects for theoretical and computational ontology applied to the space (astronautical/astronomical) domain. It follows “An ontological architecture for Orbital Debris Data” (Rovetto, 2015) and “Preliminaries of a Space Situational Awareness Ontology” (Rovetto, Kelso, 2016). Important considerations for developing a space object ontology, or more broadly, a space domain ontology are presented. The main category term ‘Space Object’ is analyzed from a philosophical perspective. The ontological commitments of legal definitions for artificial space objects (...) are also discussed. Space object taxonomies are offered and space object terms are defined. (shrink)

The article examines the peculiarities of state-church relations that are formed in the process of legitimizing civil society. It is substantiated that the 21st century, like the last 20th century, forces us to search for a new format of state-church relations in the context of international relations, modern globalization challenges, and the development of the latest communication and information space. This, of course, prompts a new assessment of the status of religion and the church in the modern political system and (...) the state based on equality, taking into account the unsuccessful experience in the Soviet past of perceiving the church as an enemy of man and, at best, a secondary or auxiliary element in state-building processes. There is an increased interest of the Christian community in direct participation in social life, the formation of civil society and the establishment of a democratic and legal state. The church, as an institution, is quite different from the state, exerting its influence not only on the spiritual situation in Ukraine, but also trying to doctrinally intervene in political life and taking responsibility for determining the civilizational perspective of the state’s development. (shrink)

The present study aims at understanding how Ethica Nicomachea V.6 relates to its preceding chapters, V.1-5. On the one hand, the interpreter wonders for what purpose Aristotle introduces a topic named ‘the civic just’ (to politikon dikaion) in V.6, since V.1-5 treats extensively of matters of justice in the city. On the other hand, the same text posits that there is a certain ‘just without qualification’ (to haplōs dikaion), which may or may not be the civic just itself; compared to (...) the just without qualification, other forms of just are so by similitude (kath’homoiteta). In attempting to clear the confusion around those two points, the present study proposes the following: (1) the civic just is the just without qualification insofar as it is the primordial form of the just, in which only humans who are cumulatively free, equals and self-sufficient have a share; (2) the description of the civic just recapitulates several aspects of the discussions of justice in V.1-5 – the laws, the kinds of equality, rule, the legal suit - because the civic just encompasses all the forms of just (dikaion) related to the virtues of universal justice (V.1) and partial justice (V.2-5); (3) the expression to politikon dikaion is introduced in V.6 in order to contrast everything treated in V.1-5 with the domestic just, to oikonomikon dikaion, mentioned for the first time in V.6; (4) the forms of the domestic just are just only by similitude with the civic just because justice loses density outside the civic sphere, a situation which can be explained by the shortcomings Aristotle ascribes to women, children and slaves in EN V.6 (lack either of freedom or equality or yet self-sufficiency) as well as in Politica I (varying degrees of defective deliberation and virtue). (shrink)

What makes paternalism wrong? I give an indirect answer to that question by challenging a recent trend in the literature that I call the exclusionary strategy. The exclusionary strategy aims to show how some feature of the paternalizee’s normative situation morally excludes acting for the paternalizee’s well-being. This moral exclusion consists either in ruling out the reasons for which a paternalizer may act or in changes to the right-making status of the reasons that (would) justify paternalistic intervention. I argue (...) that both versions of the exclusionary strategy fail to explain the wrongness of paternalism and that they struggle to accommodate the mainstream view that paternalism is only pro tanto wrong. Their failure consists either in being implausibly strong expressions of antipaternalism or in struggling to spell out the scope of exclusion in an uncomplicated way. After discouraging this exclusionary strategy, I suggest we can capture what is appealing about it—as well as avoiding its pitfalls—by sketching a philosophical model in which we compare the weights of reasons for and against paternalistically interfering. To precisify this sketch, I introduce some conceptual tools from the literature on practical reasoning—in particular, the concept of modifiers—and suggest that these tools offer a better starting point for figuring out what makes paternalism (pro tanto) wrong. (shrink)

Interactions between an intelligent software agent and a human user are ubiquitous in everyday situations such as access to information, entertainment, and purchases. In such interactions, the ISA mediates the user’s access to the content, or controls some other aspect of the user experience, and is not designed to be neutral about outcomes of user choices. Like human users, ISAs are driven by goals, make autonomous decisions, and can learn from experience. Using ideas from bounded rationality, we frame these interactions (...) as instances of an ISA whose reward depends on actions performed by the user. Such agents benefit by steering the user’s behaviour towards outcomes that maximise the ISA’s utility, which may or may not be aligned with that of the user. Video games, news recommendation aggregation engines, and fitness trackers can all be instances of this general case. Our analysis facilitates distinguishing various subcases of interaction, as well as second-order effects that might include the possibility for adaptive interfaces to induce behavioural addiction, and/or change in user belief. We present these types of interaction within a conceptual framework, and review current examples of persuasive technologies and the issues that arise from their use. We argue that the nature of the feedback commonly used by learning agents to update their models and subsequent decisions could steer the behaviour of human users away from what benefits them, and in a direction that can undermine autonomy and cause further disparity between actions and goals as exemplified by addictive and compulsive behaviour. We discuss some of the ethical, social and legal implications of this technology and argue that it can sometimes exploit and reinforce weaknesses in human beings. (shrink)

A debate about whether all children are entitled to an “equal” or an “adequate” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on. Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood as a level of spending sufficient (...) to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their state’s constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications. Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpret-ed as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate. (shrink)

When in doubt, for the embryo. New arguments on the moral status of human embryos. - In the first part of our essay we distinguish the philosophical from the legal and political level of the embryo debate and describe our indirect justification strategy. It consists in renouncing a determination of the dignity-giving φ-properties and instead starting from premises that are undoubted by all discussion partners. In the second part we reconstruct and criticize the species, continuum, identity and potentiality arguments. (...) The species argument only has a certain plausibility, if at all, as a critical argument. From the continuum argument and identity argument we take over the idea of numerical identity (NI) and link it with the core idea of the potentiality argument (P). So we come to the NIP argument: -/- (NIP) -/- (1) Every living human body that is the bearer of (or has) potential φ-properties has dignity. (2) Every viable human embryo is a living human body that is the bearer of (or has) potential φ properties. Therefore, (3) Every viable human embryo has dignity. -/- Reversibly comatose people and newborns are protected because they have the potential to have actual personal characteristics in the future; our thesis is that embryos that are capable of development also have the same potential in moral terms. The basic idea of numerical identity, with which we support the second premise, is that every human being, from embryonic existence to adulthood, forms a physical unity. In a detailed part, we deal with the crown princess, gametes, parthenogenesis, somatic cell, pronuclear stage, biological heteronome early embryo, multiple, fusion, Siamese twin, hydatidiform mole and finally trophoblast problems. In a third part, the indirect argument is supplemented by a metatheoretical cautionary argument. It states that in situations where there is doubt as to whether a being falls within the scope of a moral norm, but there are sufficiently strong reasons for this subsumption, it must be assumed that this is the case if the contrary assumption and the positive effects it may have are in no acceptable proportion to the moral harm that would result if that subsumption were not made. The main result of our considerations is therefore: When in doubt, for the embryo. (shrink)

The use of modern medical technologies and interventions involves ethical and legal dilemmas which are yet to be solved. For the religious Jews the answer lies in Halakhah. The objective of this paper is to unscramble the difficult conundrum possessed by the halakhalic standing concerning the use of human embryonic cell for research. It also aims to take contemporary ethical issues arising from the use of technologies and medical advances made in human reproduction and study them from an abstract (...) philosophical perspective. Instead of providing any Jewish practical ruling the paper have tried to incite, stimulate and encourage philosophical thoughts about the issue through the intensive understanding of traditional Jewish thoughts. In this paper, an objective as well as a deep-rooted study has been adopted about the use of human embryos for research and the Jewish adoption of assisted reproductive technologies through the prism of the knowledge of Halakhah, Torah and Talmud. The paper finds that the embryo research sits at the crossroads of many halakhalic issues. Judaism adopts the belief that God has created man in his own image. The Jews not being dogmatic decipher “the image” of the creator as the ability to discern and reason. It follows that Judaism does not subscribe to the notion that tampering with nature is prohibited. To the Jews the mitzvah for procreation is so great that they are open to reason and adopt newer medical advancement in procreation. The Jewish laws are not only for engagement in intellectual exercise or academic pursuit but subscribe to a higher order of moral conduct. The Jewish approach is not situational but also casuistic in resolving conflicting medical issues. (shrink)

Examining previous discussions on how to construe the concepts of gender and race, we advocate what we call strategic conceptual engineering. This is the employment of a (possibly novel) concept for specific epistemic or social aims, concomitant with the openness to use a different concept (e.g., of race) for other purposes. We illustrate this approach by sketching three distinct concepts of gender and arguing that all of them are needed, as they answer to different social aims. The first concept serves (...) the aim of identifying and explaining gender-based discrimination. It is similar to Haslanger’s well-known account, except that rather than offering a definition of ‘woman’ we focus on ‘gender’ as one among several axes of discrimination. The second concept of gender is to assign legal rights and social recognitions, and thus is to be trans-inclusive. We argue that this cannot be achieved by previously suggested concepts that include substantial gender-related psychological features, such as awareness of social expectations. Instead, our concept counts someone as being of a certain gender solely based on the person’s self-identification with this gender. The third concept of gender serves the aim of personal empowerment by means of one’s gender identity. In this context, substantial psychological features and awareness of one’s social situation are involved. While previous accounts of concepts have focused on their role in determining extensions, we point to contexts where a concept’s role in explanation and moral reasoning can be more important. (shrink)

Physicians in Islamic countries might be requested to participate in the Islamic legal code of qiṣāṣ, in which the victim or family has the right to an eye-for-an-eye retaliation. Qiṣāṣ is only used as a punishment in the case of murder or intentional physical injury. In situations such as throwing acid, the national legal system of some Islamic countries asks for assistance from physicians, because the punishment should be identical to the crime. The perpetrator could not be punished (...) without a physician’s participation, because there is no way to guarantee that the sentence would be carried out without inflicting more injury than the initial victim had suffered. By examining two cases of acid throwing, this paper discusses issues related to physicians’ participation in qiṣāṣ from the perspective of medical ethics and Islamic Shari’a law. From the standpoint of medical ethics, physicians’ participation in qiṣāṣ is not appropriate. First, qiṣāṣ is in sharp contrast to the Hippocratic Oath and other codes of medical ethics. Second, by physicians’ participation in qiṣāṣ, medical practices are being used improperly to carry out government mandates. Third, physician participation in activities that cause intentional harm to people destroys the trust between patients and physicians and may adversely affect the patient–physician relationship more generally. From the standpoint of Shari’a, there is no consensus among Muslim scholars whether qiṣāṣ should be performed on every occasion. We argue that disallowing physician involvement in qiṣāṣ is necessary from the perspectives of both medical ethics and Shari’a law. (shrink)

”Meaningful human control” is a term invented in the political and legal debate on autonomous weapons system, but it is nowadays also used in many other contexts. It is supposed to specify conditions under which an artificial system is under the right kind of control to avoid responsibility gaps: that is, situations in which no moral agent is responsible. Santoni de Sio and Van den Hoven have recently suggested a framework that can be used by system designers to operationalize (...) this kind of control. It is the purpose of this paper to facilitate further operationalization of ”meaningful human control”. -/- This paper consists of two parts. In the first part I resolve an ambiguity that plagues current operationalizations of MHC. One of the design conditions says that the system should track the reasons of the relevant agents. This condition is ambiguous between the kind of reasons involved. On one interpretation it says that a system should track motivating reasons, while it is concerned with normative reasons on the other. Current participants in the debate interpret the framework as being concerned with (something in the vicinity of) motivating reasons. I argue against this interpretation by showing that meaningful human control requires that a system tracks normative reasons. Moreover, I maintain that an operationalization of meaningful human control that fails to track the right kind of reasons is morally problematic.When this is properly understood, it can be shown that the framework of MHC is committed to the agent-relativity of reasons. More precisely, I argue in the second part of this paper that if the tracking condition of MHC plays an important role in responsibility attribution (as the proponents of the view maintain), then the framework is incompatible with first-order normative theories that hold that normative reasons are agent-neutral (such as many versions of consequentialism). In the final section I present three ways forward for the proponent of MHC as reason-responsiveness. (shrink)

How do we care well for a human being: ourselves or another? Non-Kantian scholars rarely identify the philosophy of Kant as a particularly useful resource with which to understand the full complexity of human care. Kant’s philosophy is often taken to presuppose that a philosophical analysis of good human life needs to attend only to how autonomous, rational agents—sprung up like mushrooms out of nowhere, without a childhood, never sick, always independent—ought to act respectfully, and how they can be forced (...) to interact rightfully. Questions involving aspects of human life captured by what Eva Kittay aptly phrased “the fact of dependency” (1999) —such as our vulnerable, fragile, and embodied social natures, asymmetrical care relations, and deep systemic injustices—are therefore commonly thought to be beyond the grasp of Kant and of Kantian philosophy. Against this historically prominent understanding of Kant’s practical philosophy, below I engage and draw upon recent Kant scholarship which shows both the inadequacy of such rationalist readings and the fruitfulness of using Kant’s practical philosophy to enhance our understanding of human care relations. After situating my approach in the existing, relevant secondary literature on Kant’s human agent, I explore key features of Kant’s accounts of human nature and the highest good. I pay special attention to his proposal that our human nature comprises reflective and unreflective aspects and patterns that we (ought to) strive to develop, transform, and integrate in wise ways through our faculty of desire. In addition, I emphasize the dangers that our ineradicable propensity to do bad things (evil) poses for our projects of self- and other- care. I proceed by outlining how Kant’s account of moral (ethical and legal) responsibility for self and others is developed through his theories of freedom, that is, through his theory of virtue (virtuous internal freedom with its account of perfect and imperfect duties) and his theory of right (rightful external freedom with its account of innate, private, and public right). On the conception I am advancing, we are pretty messy, fragile, and vulnerable beings whose projects of caring are difficult, ongoing, and complex. On the one hand, we (should) strive to care for ourselves (by striving to manage and heal badly functioning parts and by developing, transforming, and integrating immature or distinct parts of ourselves into good wholes) and for others (assisting them in their projects of management and healing and of developing, transforming, and integrating themselves into good wholes) in ways that are both respectful and attentive to the particular people we are—people with lives of our own to live—and the kinds of relationships we share. On the other hand, we should, and can, be forced to interact rightfully, meaning interaction consistent with one another’s basic (innate, private, and public) rights and, hence, contribute to reform projects that improve our inherited, imperfect legal-political systems with regard to care relations. Bringing Kant’s philosophy into dialogue with care theorists, I conclude, advances the insights of both traditions by showing one way to arrive at a multifaceted, yet unified account of human care relations where our embodied, social as well as our rational natures are given due consideration. (shrink)

In this paper I sketch a socially situated account of responsible agency, the main tenet of which is that the powers that constitute responsible agency are themselves socially constituted. I explain in detail the constitution relation between responsibility-relevant powers and social context and provide detailed examples of how it is realized by focusing on what I call ‘expectations-generating social factors’ such as social practices, cultural scripts, social roles, socially available self-conceptions, and political and legal institutions. I then bring my (...) account to bear on the debate about the exculpatory potential of moral ignorance. I show that a prominent position in this debate – the position that denies that moral ignorance exculpates – is grounded on an individualistic and acontextualist conception of moral capacities, moral cognition, and blameworthiness, and that this conception leads those philosophers who endorse it to make a number of questionable claims regarding the ability of ordinary agents to overcome their moral ignorance and the culpability they bear for the latter. I conclude by indicating how my socially situated account addresses the issue of moral ignorance. (shrink)

The cultural, economic and political crisis affecting the European Union (EU) today is manifested in the political community’s lack of enthusiasm and cohesion. An effort to reverse this situation – foster ‘EU identity’ – was the creation of EU citizenship. Citizen- ship implies a people and a polity. But EU citizens already belong to national polities. Should EU citizenship override national citizenship or coexist with it? Postnationalists like Habermas have suggested EU citizenship can overcome nationalisms, grounding political belonging on (...) the body of laws that members of the post- national polity generate in the public sphere. Cosmopolitan communitarianists like Bellamy, by contrast, think that EU citizens should form a mixed commonwealth, with political belonging based on national citizenship. I will argue in favour of the second option, and submit an analogical reading of the ensuing ideas of citizenship, identity and polity. Cosmopolitan communitarianist EU citizenship promises to better foster the great richness of European national cultural, religious, historical, political, legal and linguistic diversity in a ‘mixed’ polity. Its main challenge is how to keep the diverse, mixed polity together. (shrink)

It has been debated whether the so-called attention economy, in which the attention of agents is measured and sold, jeopardizes something of value. One strand of this discussion has focused on so-called attention rights, asking: should attention be legally protected, either by introducing novel rights or by extending the scope of pre-existing rights? In this paper, however, in order to further this discussion, we ask: How is attention already protected legally? In what situations does a person have the right to (...) attention under current law? -/- Unlike (Chomanski, Neuroethics 16:1–11, 2023), who discusses an overall right to attention, or (Puri, Rutgers Law Record 48:206–221, 2021), who discusses an overall right to attentional privacy, in this paper we focus on two types of situations in which a person’s attention is already protected by legal regulation. Sustained attention-requiring tasks can be jeopardized by distractions whereas attentiveness to certain kind of stimuli can be jeopardized by immersive stimuli. That is why distractions are regulated in situations where an agent has what we call a concentration right and immersive stimuli are regulated in situations where an agent has what we call a duty to be attentive. The further analysis of these situations provides an understanding of the legal means by which attention is already regulated, which can be helpful when thinking about how it should be regulated in the future. (shrink)

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, (...) where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)