The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.

La "judicialización" es un fenómeno amplio, que resulta de la confluencia de innumerables tendencias históricas y que produce diversos efectos en las prácticas económicas, sociales y políticas. Algunos analistas contemporáneos han advertido que la judicialización implica una profunda transformación sobre las prácticas de gobierno. Este artículo sostiene quela judicialización, especialmente la denominada "judicialización de la política", tienen estrechos vínculos con el neoliberalismo. El problema consiste en que, al día de hoy, son escasos los estudios capaces de corroborar tal relación. ¿Cómo (...) y hasta qué punto la judicialización fue promovida por el neoliberalismo? Para contestar esta pregunta, se procederá al análisis genealógico de una serie de documentos redactados a mediados del siglo XX, siguiendo la hipótesis de que allí emerge un programa de gobierno donde la judicialización no sólo es admitida e incluso promovida, sino además propuesta como una práctica privilegiada de intervención estatal sobre la sociedad. "Judicialization" is a broad phenomenon, which is the result of the confluence of innumerable historical trends and that produces diverse effects on economic, social and political practices. Some contemporary analysts have observed that the judicialization implies a profound transformation in government practices. This article argues that judicialization, especially the so-called "judicialization of politics", has close relations with neoliberalism. The problem is that, at present, there are few studies capable of corroborating this relationship. How and to what extent was the judicialization promoted by neoliberalism? To answer this question, we make a genealogical analysis on a set of documents written in the mid-twentieth century. According to our hypothesis, these documents emerge a program of government where the judicialization is not only admitted and even promoted, but also proposed as a privileged practice of state intervention on society. (shrink)

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative (...) class='Hi'>judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future. (shrink)

Logic and philosophy of logic have increasingly become areas of research and great interest in Latin America and Spain, where significant work has been done and continues to be done in both of these fields. The goal of this volume is to draw attention to this work through a collection of original and unpublished papers by specialists from Latin America and Spain. Some of the papers are of importance for set-theory and model theory. They cover topics such as the foundations (...) of paraconsistency, the use of paraconsistent logic as a basis for set-theory, and the methodological aspects in both the justification of new axioms in set theory and the formalization of pre-theoretic notions. Other papers are related to epistemic logic. They deal with the issues of abduction and the choice of the simplest hypothesis, the definition of group probability, and the nature of explanation and understanding in such logic. There are also papers on logical paradoxes, the semantics of names, and the nature of relations. Max A. Freund is Professor of Logic and Philosophy at the University of Costa Rica and the National University of Costa Rica. He is co-author of the book Modal Logic its syntax and semantics, as well as the author of Judicial Logic, and of a forthcoming book The Logic of Sortals. Max Fernandez de Castro is Professor of Logic and Philosophy at the Autonomous Metropolitan University of Mexico. He is the author of the book Quine y la Ontologíaa and co-author of the books Lógica Matemática I: lógica proposicional, intuicionista y modal, Lógica Matemática II: clásica, intuicionista y modal, Teoría de Conjuntos, Lógica y Temas Afines I. Marco Ruffino is Professor of Philosophy at the University of Campinas and the editor of Manuscrito, the Brazilian international journal for Analytic Philosophy. He has many publications, in important philosophical journals, in the philosophy of language, of logic, and of mathematics; in the history of analytic philosophy, and on Frege and Wittgenstein. (shrink)

This paper summarizes key shifts in judicial decisions relating to public health powers during the pandemic and the implications of those decisions for public health practice. Then, it gives a preview and call for partnership in developing a legal framework for authority that guides public health to better activities, processes, and accountability in service of the public’s health.

BackgroundIn its 2015 decision in Montgomery v. Lanarkshire Health Board, the Supreme Court of the United Kingdom overruled the long-standing, paternalistic prudent doctor standard of care in favour of a new reasonable patient standard which obligates doctors to make their patients aware of all material risks of the recommended treatment and of any reasonable alternative treatment. This landmark judgment has been of interest to the rest of the common law world. A judicial trend of invoking Montgomery to impose more (...) stringent requirements on doctors is discernible in subsequent decisions since then.Main bodyIn this narrative review, without questioning the idea that properly informed patients should play a more active role in procedures affecting their own health in furtherance of their autonomy, safety, and consumer rights, we identify and analyse, with the aid of realistic clinical thought experiments, three practical conundrums that the Montgomery standard may inflict on the daily work of doctors, unfairly exposing them to arbitrary legal risks.ConclusionsThese conundrums pertain to the ascertainment of the risks that must be disclosed to the patient under the test of ‘materiality’; the legal uncertainty as to the scope of the exceptions; and the actual ability of doctors to cope with the pressures of time. These conundrums offer ripe opportunities to rethink the proper role of judicially developed medical law in modern health care practice. (shrink)

In a 1998 article, Bohman argued that the contemporary deliberative turn in democratic theory had reached its ‘coming of age’, as deliberative democrats began to show greater interest in the institutionalization of their proposal. Moreover, Bohman referred to this growing interest with an expression that was unprecedented at the time: ‘deliberative constitutionalism’. At present, deliberative constitutionalism has become one of the most original and relevant contemporary proposals. In this context, my article proceeds as follows. I begin by arguing that the (...) contemporary deliberative turn in democratic theory also gave rise to a deliberative turn in constitutionalism—that is, a trend aimed at orienting constitutionalism and judicial review towards democratic deliberation. Next, I argue that, at that embryonic yet promising stage, deliberative constitutionalism had shortcomings that hindered the aim assumed since its origins. Finally, I argue that, over recent decades, these shortcomings have been finessed, which shows that deliberative constitutionalism has also reached its coming of age. (shrink)

Historically, judicial enforcement of constitutional rights to health care has played a fairly limited role in enabling access to health care, a trend particularly prevalent in North America, and reflected in many other regions. This trend is due in part to judicial resistance to recognizing socioeconomic rights like health as appropriately legal, or as appropriately enforceable in light of the doctrine of separation of powers. This resistance is evident in judicial deference to social and economic policy, a (...) reluctance to view socioeconomic claims as invoking “fundamental values” that courts consider themselves authorized to protect: and a real reluctance to recognize and enforce “positive” obligations pertaining to social welfare. As a result, health has often fallen largely into the political rather than legal sphere, and domestic courts have been relatively reluctant to review health policies from a human rights perspective, given the belief that doing so would exceed the appropriate democratic function of the judiciary. (shrink)

The dynamics of the superior judiciary in Pakistan have undergone a drastic transformation in its approach and working in post 2007 emergency followed by a landmark movement of civil and legal fraternity for restoration of constitutional supremacy. The neo-jurisprudence is being applauded and criticized at the same time. The excessive use of Suo-motto and public interest litigation at one hand and frequent judicial review of executive and legislative action on other have been the main source of contention between judiciary (...) and other two pillars of state, legislature and executive. The Superior Court is being recognized as the ultimate savior of fundamental rights and guardian of the constitution as well as rights of the people. At the other extreme, the criticism like activist judiciary; disrespect for popular will and making rather interpreting law are most commonly attributed to Superior Judiciary. The study is qualitative in nature and presents a comparative analysis of trends in Superior Court before and after Lawyers’ movement. The study also aims in justifying the proactive approach especially in providing social justice on failure of state organs to respond to the exigency of time. (shrink)

European police and judicial cooperation was initiated as a counterpart to the progressive abolition of internal border controls under Schengen. Since then, the security policy of the European Union (EU) has developed into one of the most dynamic and fastest growing policy areas of the Union. The aim of this contribution is to outline the main trends and characteristics of this policy field. I suggest to conceptualised them as instances of ‘pre-emptive security’. This is an approach to security (...) that focuses on hypothetical future events and aims to prevent the most serious events (e.g. serious criminal offences) by means of risk assessments and probability forecasts, without addressing the phenomenon as a whole (e.g. crime) and its causes. Pre-emptive understandings of security differ from both reactive and pre-emptive approaches. In the paper, I outline the main characteristics of this model both in historical terms and with regard to the latest developments in the field of EU security policy. Finally, I discuss the problematic normative implications of the pre-emptive understanding of security, both for the rule of law and democracy and for human autonomy. (shrink)

This article addresses how bodily integrity has been mobilised in the context of genital cutting of male infants and the extent to which the concept is taken into account in legal decision-making in the United Kingdom. While bioethicists have debated whether interventions on children's bodies are more appropriately determined on the basis of hypothetical consent or in the child's best interest, it is clear that in law the relevant test is whether interventions are in the child's best interest. As the (...) issue of nonconsensual genital cutting of infants has become more contested, courts have been asked to adjudicate on the best interests of infants in situations where their caregivers disagree about procedures. Although this body of jurisprudence remains (surprisingly) small, in this article we argue that, while there are now discernible trends in such cases (e.g. deferring decision-making until the child has the requisite capacity to decide, engaging with certain human rights norms), too often judicial reasoning about a child's best interests remains largely empty of reasoned content, and in certain respects is regressing. Using the recent case of Re P to exemplify this logic, and drawing on our previous work advocating the value of embodied integrity, we argue that judges should adopt a more substantive framework of values in judging the child's corporeal and other interests in such cases. This would move best interests assessments beyond a mere formalistic exercise and lead to better reasoned legal judgements. (shrink)

This article explores the trend of increasing automation in law enforcement and criminal justice settings through three use cases: predictive policing, machine evidence and recidivism algorithms. The focus lies on artificial-intelligence-driven tools and technologies employed, whether at pre-investigation stages or within criminal proceedings, in order to decode human behaviour and facilitate decision-making as to whom to investigate, arrest, prosecute, and eventually punish. In this context, this article first underlines the existence of a persistent dilemma between the goal of increasing the (...) operational efficiency of police and judicial authorities and that of safeguarding fundamental rights of the affected individuals. Subsequently, it shifts the focus onto key principles of criminal procedure and the presumption of innocence in particular. Using Article 6 ECHR and the Directive (EU) 2016/343 as a starting point, it discusses challenges relating to the protective scope of presumption of innocence, the burden of proof rule and the _in dubio pro reo_ principle as core elements of it. Given the transformations law enforcement and criminal proceedings go through in the era of algorithms, big data and artificial intelligence, this article advocates the adoption of specific procedural safeguards that will uphold rule of law requirements, and particularly transparency, fairness and explainability. In doing so, it also takes into account EU legislative initiatives, including the reform of the EU data protection _acquis_, the E-evidence Proposal, and the Proposal for an EU AI Act. Additionally, it argues in favour of revisiting the protective scope of key fundamental rights, considering, _inter alia_, the new dimensions suspicion has acquired. (shrink)

There is a growing trend in Australia to require lawyers to certify reasonable prospects of success for the cases they bring and defend. New South Wales has led the way with the Legal Profession Act 2004 (NSW) Pt 3.2 Division 10 requiring legal practitioners to certify reasonable prospects of success in all claims for damages. The requirement places a significant onus on lawyers to make a judgment about the merits of a case before it is begun, yet the common law (...) has long provided mechanisms to ensure that cases without prospects of success do not go to trial. This article considers Australian legislative provisions requiring lawyers to certify reasonable prospects of success of cases. It examines the application of the NSW legislation by the courts highlighting the difficulties of interpretation of what constitute 'reasonable prospects of success' and the application of the legislation in the context of the dynamic litigation process. It is argued that these legislated obligations on lawyers will have a detrimental effect on access to justice by denying parties, in particular plaintiffs, the opportunity to have their cases properly and fully determined in the courts. This article examines common law mechanisms for dissuading cases without prospects and argues that the general law is an effective system for ensuring that cases without prospects of success are not maintained. The Australian experience is instructive for consideration of optimal reform packages for the administration of justice and to evaluate the role of any litigation lawyer within the judicial and court process. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS 133 The Foundations of Mysticism. Vol. I of The Pl'.esence of God: A History of Western Christian Mysticism. By BERNARD McGINN. New York: Crossroad, 1991. Pp. xxii and 49. Index and bibliography. $39.00 (cloth). With this work Bernard McGinn delivers the first of a projected four volume History of Western Christian Mysticism. The Foundations in· cludes, as one might expect, the Scriptural tradition, Neoplatonic phi· losophy, early (...) Greek Fathers who influenced the Latins, as well as the early "Founders" Ambrose and Augustine. Judged by the quality of its start, this work promises to become a standard history for years to come. The author displays a stunning acquaintance with the sources of a subject that extends over full twenty centuries. Though " spe-·cialized " in the spirituality of the high and late Middle Ages (he has written substantial studies on Joachim de Fiore and Eckhart), the Chi· cago professor has admirably succeeded in mastering the mass of per· tinent literature of this early period, as the 150 pages of notes and bibliography testify. His ideas are clearly presented, his evaluations of others critical yet generous, his overall judgment impressively balanced. Moreover, he ventures well beyond the usual territory. His work in- -eludes subjects rarely discussed hut often alluded to in the history of.early Christian spirituality: e.g. Gnosticism, which appears here not as a " heresy ", but as a spiritual movement in its own right. The thorough discussion of Philo together with the introductory chapter on 4 ' The Jewish Matrix" (somewhat improperly entitled since it deals only with the Hebrew Bible) display an unusual appreciation of the underestimated influence of Jewish mysticism. One would have been happy to read more about Marius Victorinus, hut is grateful to find him present at all. A historical survey of this scope may easily degenerate into an enumeration of titles and trends, whereby ideas are treated as facts. Professor McGinn has judiciously avoided that. Entire sections of his history are rich monographs about spiritual systems treated for their intrinsic interest rather than as transitory moments of an indifferent history. The sections dealing with Origen, Evagrius, and Ambrose in particular deserve to be read as independent treatises. The long concluding chapter on Augustine also presents a marvelous synthesis, though one primarily written from the point of view of its later impact. In a study of this nature the definition of its formal object presents.a unique problem. Before the late Middle Ages the concept of a purely private spiritual experience remained largely unknown in Christian 134 BOOK REVIEWS spirituality and until the seventeenth century even the substantive " my,;· ticism ", referring to a separate activity, did not exist. H what we now take to be characteristic were to serve as normative concept, almost all spiritual writers of the :first Christian millennium and a good many after that would he excluded. Moreover, the subjective mystical ex· perience remains inaccessible to the historian. McGinn has wisely confined his subject to the spiritual text in its social and ecclesiastical context. But this choice leads to a further, equally difficult question: What constitutes a mystical text? Obviously not all religious or theo· logical writings are mystical. Protestant theologians of the nineteenth century tended to consider a genuine Christian faith incompatible with mysticism, while prominent students of mysticism in this century (such as Underhill, Butler) :remained highly suspicious of speculative theology, including the so-called "mystical" one, But friend and foe of mysticism agree that the mystical, however conceived, cannot simply he identified with the religious. Some scholars, such as von Hiigel, distinguish the mystical from other aspects of religion, but leave its positive content vague and controvertible. Avoiding a precision which the nature of the subject precludes, McGinn nevertheless goes to the heart of the matter in :referring to the mystical as to the dynamic power that drives the religious mind toward the experienced presence of God, without necessarily bringing it to the state of full union. The author's position appears in the felicitous choice of the general title: The Presence God. All religious life aims at entering into the presence of God. But " mystical " religious texts speak of a particular mode of divine presence, not ordinarily... (shrink)

Despite the fact that in recent years there has been an active trend of growth of freedom of expression in Kazakhstan, domestic legislative and judicial practice lags far behind international standards. The purpose of the study is to examine the legal situation concerning freedom of expression in Kazakhstan, particularly with regard to the functioning of the media, and to find ways to effectively ensure and adequately regulate this issue in law. The methodological approach is based on the dialectical method (...) used to investigate the content and legal foundations of freedom of speech, synthesis, analysis, and comparative legal method. The results obtained provide an opportunity to analyse the state of national legislation in the sphere of implementation and protection of the right to freedom of expression, as well as to identify the largest gaps in this sphere and their subsequent resolution. The investigation of international legal experience and a comparative analysis allow identifying a significant difference between the legislations of countries with a high index of press freedom and freedom of speech, and Kazakhstan. This research is of critical importance for the development of the human rights and freedoms protection sector, as well as journalism, especially given the current situation in the Republic associated with strict state control over the activities of the media, the inability to express and publicly broadcast opinions and ideas that are unfavourable for the ruling circles. (shrink)

The objective of the paper is to present the role of the non-professional judge in Poland as an important manifestation of civic culture based on citizens’ activity in the sphere of justice among other things. The paper also highlights the importance of an appropriate selection of citizens who are to adjudicate and possibly place restrictions on access to judicial functions using the example of Polish law. The last part addresses the problem of the gradual reduction of the participation of (...) lay judges in the Polish justice system and the controversial attempts to halt this trend, such as the introduction of lay judges to the Supreme Court and the start of discussions on the introduction of the justice of the peace to common courts. (shrink)

As a type of public discourse closely related to litigation practices, Chinese legal news reports incorporate the important progress in China’s judicial reform. Meanwhile, due to the competitive pressure and driven by profit, Chinese legal news reports are characteristic of an evident trend of marketization. This article examines how and to what extent sensationalism invades Chinese legal news reports. The research methodology combines the theoretical paradigms of critical discourse analysis and genre analysis, with particular attention paid to the notions (...) of genre and interdiscursivity. The data include 70 legal news reports in Legal Daily. Analytical results show that Chinese legal news reports, although being a highly institutional genre, include a number of sensational strategies which promote the restructuring of legal news reports in China. (shrink)

The question posed in this article is whether Catholics can fully, unreservedly, and conscientiously carry out their duties as citizens and as holders of their various public offices (legislative, judicial and executive) of the State, in accordance with the laws and constitution of the democratic and pluralist States in which they live. My concern—as a practicing Catholic and a practicing lawyer—is that the increasingly fierce Church criticism, which arose during the papacy of John Paul II and now of Benedict (...) XVI, of the perceived trend towards secularization in the social and political mores of Western (particularly European) democracies, and the greater readiness by Church officials to take it upon themselves explicitly to instruct the laity in political matters, puts this whole issue again into question. Should the bishops of the Catholic Church be seeking to use their ecclesiastical authority (over the faithful) to oppose or promote changes in the laws which apply to all within our society and/or to influence the way we might vote or carry out civic duties? This is a big and complex area involving the interplay of politics and theology; of private and public morality. It touches on the role of teaching office of the Catholic Church and the assent (and possibility of dissent) on the part of the faithful. It takes in questions of conscientious objection and unjust laws. It concerns individual conscience and the hope of salvation. It is about voting as sinning. It is about judging, and being judged. (shrink)

This was one of SCSS President Stephen M. Krason’s “Neither Left nor Right, but Catholic” columns that appear monthly in Crisis and The Wanderer. It discusses the tragic case of Charlie Gard, the baby who a U.K. hospital would not discharge so his parents could take him to the U.S. for experimental treatment for a rare, normally terminal DNA disorder that might have saved his life. Krason says that the case illustrated a number of dangerous current trends in Western (...) political societies: the advancement of the euthanasia/“quality of life” mindset, the suppression of parental rights by both child protective-type agencies and courts that are overly-deferential to them, runaway judicial power generally, the increasing authoritarianism of functional experts, and the unwillingness of elected political officials and leaders to come to the aid of the citizenry by standing up to them and the unelected bureaucrats and judges who protect them and more generally to uphold the traditional legal norms and principles that they are violating. (shrink)

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between (...) constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

The Employee Retirement Income Security Act is a federal law regulating the administration of private employer-sponsored benefits including health benefits . In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA. As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The (...) dominant trend in ERISA litigation has been to preempt state legislation and litigation interfering with the administration of private employer-sponsored health plans, making large-scale state health care reform initiatives difficult. The purpose of this paper is to examine the trajectory of judicial interpretation of ERISA and to discuss what opportunities exist to facilitate health care initiatives given the constraints of ERISA preemption. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, democratic participation (...) and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

As one of the most massive and successful business sectors, the pharmaceutical industry is a potent force for good in the community, yet its behaviour is frequently questioned: could it serve society at large better than it has done in the recent past? Its own internal ethics, both in business and science, may need a careful reappraisal, as may the extent to which the law - administrative, civil and criminal - succeeds in guiding (and where neccessary contraining) it. The rules (...) of behavior that may be considered to apply to today's pharmaceutical industry have emerged over a very long period and the process goes on. Even the immensely detailed standards for quality, safety and efficacy laid down in drug law and regulation during the second half of the twentieth century have their limitations as tools for ensuring that the public interest is well served. In particular, national and regional regulatory agencies are heavily dependent on industrial data for their decision-making, their standards and competence vary, and even the existing network of agencies does not cover the entire world. What is more there are many areas of law and regulation affecting the industry, concerning for example the pricing of medicines, the conduct of clinical studies, the health protection of workers and concern for the environment. In some fields it is indeed hardly possible to maintain standards through regulation. Professor N.M. Graham Dukes, a physician and lawyer with long term experience in industrial research management, academic study and international drug policy, provides here a powerfully documented analysis into the way this industry thinks, acts, and is viewed, and examines the current trends pointing to change. *Provides a balanced picture of the current role of the pharmaceutical industry in society *Includes indices of conventions, laws, and regulations; as well as judicial and disciplinary cases *This is the only book addressing the legal implications of big pharma activities and ethical standards. (shrink)

An account of successive legal theories in England and America against a background of the varieties of natural law in the ancient, medieval and modern worlds. The outcome in Legal Realism provides insight into contemporary issues in law and the judicial process and their relation to moral philosophy. As Levy shows, legal theory has always been inspired by forces outside the law in philosophy and politics. In England the philosophy of Utilitarianism as expounded by Bentham and Austin brought legal (...) positivism into prominence as an alternative to natural law. In the United States the philosophy of pragmatism spearheaded by James and Dewey and shared by Justice Holmes gave the functional turn resulting in the movement of Legal Realism. After sketching the background of varieties of natural law in the ancient, medieval, and modern worlds, Levy presents leading figures and trends in England and the United States. The book is written so as to be intelligible to lawyers, philosophers, and students of cultural history and social science. (shrink)

This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution. It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights. It concludes with policy recommendations concerning (...) how the various consumer enforcement mechanisms should be coordinated at the EU and national level to ensure comprehensive and effective protection in compliance with fundamental rights. (shrink)

Abstract—How do judges decide cases? Are judges controlled by rules, principles and professional standards of reasoning or do they decide as politicians, using the law as an instrument to achieve predetermined goals. In Australia one influential view on this issue was expressed by Sir Owen Dixon when he called for a ‘strict and complete legalism’ for judges. Dixon’s strict legalism no longer commands the respect that it once did and his view is now commonly seen as naïve or as a (...) noble lie intended to hide the freedom open to judges when they decide cases. This article examines first Dixon’s understanding of strict legalism. It will argue that Dixon understood it as a form of practice and not as a rigorous scholarly system. Secondly, it will analyse Wilson v Darling Island Stevedoring to see whether the leading judgment of Fullagar J is in accord with Dixon’s judicial method. In Wilson the High Court was presented with a persistent legal problem—could stevedores claim the benefits of exemption and limitation clauses that commonly featured in bills of lading arising from the transport of goods and people? The third section of the article will consider the obvious belief of many of the judges in the authorities examined that the commercial inconvenience of not protecting stevedores was too great to ignore. These judges were willing to grant stevedores the protection of exemption clauses in contracts of carriage, a trend that continued, indeed accelerated, after Wilson. So, even if Fullagar J did judge as a strict legalist, does this perceived commercial imperative raise doubts about the appropriateness of this style of judging? In conclusion the article will consider the implications of showing that the reasoning in Wilson displayed a fidelity to Dixon’s notion of strict and complete legalism. (shrink)

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all “contract[s] evincing a transaction involving commerce,” including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures (...) that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness in the near future more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims might be hashed out in the sequestered universe of arbitration. (shrink)

This paper discusses basic concepts and recentdevelopments in intellectual property ownership in theUnited States. Various philosophical arguments havepreviously been put forward to support the creation andmaintenance of intellectual property systems. However, in an age of information, access toinformation is a critical need and should beguaranteed for every citizen. Any right of controlover the information, adopted as an incentive toencourage creation and distribution of intellectualproperty, should be subservient to an overriding needto ensure access to the information. The principlesunderlying intellectual property regimes (...) in the UnitedStates recognize and embody this. In addition, thephilosophical/ethical dimensions of this debate couldalso be structured to support this attitude as well. Intellectual property is fast becoming digitalproperty. New technologies allow owners to extendtheir control of both legitimate uses and misuses ofthe intellectual property. Recent trends demonstratethat the access principle has not always beenparamount in judicial or legislative applications. Thetrend rather is to allow a proprietarianism factor todominate the analysis. Finally, several principles areforwarded which would assist adjudicators and policymakers in reaffirming the basic purpose of theintellectual property law, which is to benefit thepublic at large. (shrink)

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the leftwing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlin’s work exemplify certain trends within the left, the result of the left having lost faith in its positive political programme, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility (...) to liberalism and judicial review in combination with a sense that the realm of politics—the political—is valuable. This combination explains the turn taken by certain leftwing theorists to Carl Schmitt’s authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, would be better for the left both to return to its roots in a positive programme. This move would require the left to engage properly in the contemporary debate about the normativity of law. (shrink)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together (...) legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Transformations of the Confucian Way, and: Histoire de la pensáe chinoiseMichael NylanTransformations of the Confucian Way. By John H. Berthrong. Boulder, Colorado: Westview Press, 1998. Pp. xiv + 250.Histoire de la pensáe chinoise. By Anne Cheng. Paris: Editions du Seuil, 1997. Pp. 650.Reviewing bad books, W. H. Auden once observed, is bad for the character. On the assumption that the reverse must also be true, I am delighted (...) to review not one, but two good books: John H. Berthrong's Transformations of the Confucian Way and Anne Cheng's Histoire de la pensáe chinoise. Each contributes significantly—though differently—to our appreciation of the long history of classical learning in China. [End Page 632]Berthrong, in seven chapters and 250 pages, neatly summarizes the main developments of what he calls the "Confucian Way." As a teaching tool for undergraduates and nonspecialists, the book's strong appeal is based on three factors: (1) the coherence of its narrative (no mean feat for a book covering over 2,500 years of the Way); (2) the respectful approach that it brings to intellectual traditions and the controversies they have engendered over time; and (3) the case that it urges for the relevance of the Confucian Way today to life outside the classroom and outside China. To achieve such coherence, Berthrong divides his story into seven manageable units spanned by "six paradigmatic historical transformations of the Confucian Tradition" (p. 6): (1) the rise of the Confucian tradition in Zhou China; (2) the canonization of the Confucian Classics in Han times; (3) "the defense of the [Confucian] faith" during the third through the tenth centuries; (4) the Neo-Confucian Revival in the Song; (5) reactions to Song Neo-Confucianism in "the turn toward the mind," epitomized by Wang Yangming (1472-1529); (6) the late empires of Qing China, Tokugawa Japan, and Yi/Chosŏn Korea; and (7) Confucianism in the modern world.Berthrong has chosen a sensible approach to his sprawling history, whose scope would leave most scholars cowering. He judiciously draws upon the best scholarship available on each of the transformations (giving full credit where it is due), with the result that even beginning students can quickly gain a sense not only of the important debates in the long history of classical learning but also of prominent scholars working in the field today. As a master of the declarative sentence, Berthrong has no trouble writing the bridging paragraphs required to situate his thinkers neatly within the broader historical trends that Confucian morality has shaped, reflected, or been changed by. His afterword devoted to "Further Readings and Contentious Issues" then leads readers responsibly outside the book to larger worlds, broaching difficult topics with sensibility and grace. Without hesitation, then, I would recommend that this book be assigned in all manner of undergraduate courses, in "rice paddies" as well as in courses on comparative thought and Chinese history— though I would have my own students think of it as an intellectual history of East Asia, not as a history of the Confucian Way (a point to which I return below).To communicate his respect, Berthrong seeks to illustrate "the complexity of the vision, life, conduct, meditation, conflict, compromise, and creativity that is hidden by the generalization of the word 'Confucianism'" (p. 7). To Berthrong's way of thinking, the death of "scriptural Confucianism" (Mark Elvin's phrase) notwithstanding, a tradition so protean in its transformations and so compelling in its advocacy of full humanity (ren) should find a way to renew itself in the near future—especially when his set of thinkers have at least as much light to shed on the philosophical problems encountered by humans as their counterparts among the philosophical masters of Europe and America. Berthrong is therefore at his very best when discussing xing (human nature), li (principle), and xin (heart/mind), comparing and contrasting the epistemology of Shao Yong (1011-1077), the cosmological speculations of Zhou Dunyi (1017-1073), the Cheng brothers on mind and principle (li), or the ruminations on sagehood by Wang Yangming (1472-1529).While such discussions richly convey to even the beginning student of Chinese [End Page 633] thought... (shrink)

This book well deserves the 1965 Century Psychology Series Award. The author displays a remarkable grasp of the history of philosophy, contemporary philosophy of science, probability theory, and behavioral psychology. The first part consists of a review of the empiricist tradition including informative and judicious accounts of rationalists, empiricists, Kant, logical atomism, positivism, and recent trends in logical empiricism. The second part deals directly with psychology and the philosophy of science. It culminates in a detailed and sophisticated discussion of (...) the problems concerning reductionism. The third part treats recent contributions to probability theory and induction. Although Turner covers a great deal of material, he does so with skill and imagination. One will find here one of the best philosophic defenses available of the viability of behaviorism in psychology which directly meets many of the challenges recently raised by skeptical philosophers.—R. J. B. (shrink)

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

This paper argues that Aeschylus' Eumenides presents a coherent geography that, when associated with the play's judicial proceedings, forms the basis of an imperial ideology. The geography of Eumenides constitutes a form of mapping, and mapping is associated with imperial power. The significance of this mapping becomes clear when linked to fifth-century Athens' growing judicial imperialism. The creation of the court in Eumenides, in the view of most scholars, refers only to Ephialtes' reforms of 462 BC. But in (...) the larger context, Athenian courts in the mid-fifth century are a form of imperial control. When geographically specific jurisdiction combines with new courts, it supports and even creates a developing imperial ideology. Moreover, the figure of Athena and the role she gives the Athenian jury emphasizes a passionate pro-Athenian nationalism, a nationalism that the text connects to Athens' geographic and judicial superiority. This imperial ideology did not spring from Aeschylus' imagination fully formed; it reflects a trend in Athens of promoting her own cultural superiority. This sense of cultural superiority in fact disguises the realities of Athens' developing power and increasingly harsh subjection of her former allies. (shrink)

Rowland’s message in Morality by Design mirrors Kant’s ‘moral argument’ for God. As such, he is part of a global trend in philosophy towards a ‘religious renaissance’, also reflected in the work of orthodox critical realists, especially those who are drawn to (Kantian-inspired) Jurgen Habermas and/or (Pragmatist) John Dewey in addition to Roy Bhaskar. Many orthodox critical realists may not realize that their approach – which assumes the existence of an absolute, innate, embedded morality – ultimately requires the idea of (...) God to be consistent. By conflating faith with reason, this religious renaissance offers a progressive-sounding discourse that can be used to legitimise activism to achieve socially conservative, yet politically left wing, policy outcomes, norm formation and judicial interpretations. It therefore threatens the hard-won rights of women and members of the LGBTQ community. This review essay offers Bhaskar's original critical realism as an antidote to the religious renaissance in philosophy. (shrink)

This article charts the rise of a new, and increasingly influential, theory of public law: common law constitutionalism. The theory can best be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization. The core of argument underlying the theory is elucidated by means of an analysis of (...) the work of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity. (shrink)

"Law and Economics has become an established field worldwide and it may be argued that it is one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It provides insights on the foundations and methods, achievements and challenges of Law and Economics, at a time when both the continuing challenges to academic economics and the growth of empirical legal studies raise questions about the identity and (...) possible further developments of the project. Through a combination of reflections on long-term trends and detailed case studies on current developments, contributors to this volume analyse whether and in which sense Law and Economics is a successful interdisciplinary endeavour. Inspired by insights from the philosophy of social sciences, the book shows how concepts travel between legal scholarship and economics, how they change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines"--. (shrink)

At present, many countries have lowered the minimum age of criminal responsibility to deal with the trend of juvenile crime. In practical terms, whether countries advocate for lowering the age of criminal responsibility along with early puberty, or regulating the minimum age of juvenile criminal responsibility through their policies, their deep-rooted hypothesis is that age is tied to adolescents’ psychological growth, and, with the rise in age, the capacity for dialectical thinking, self-control, and empathy gradually improves. With this study, we (...) aimed to test whether this hypothesis is valid. The participants were 3,208 students from junior high school, senior high school, and freshman in the S province of the People’s Republic of China. We subjected the gathered materials to independent-samples t-tests, one-way analysis of variance, linear regression analysis, and Bonferroni post hoc test. The influence of the age variable upon dialectical thinking, self-control, and empathy was significant, but only empathy was positively correlated with age variable ; dialectical thinking ability, and self-control ability were negatively correlated with the age variable. Bonferroni post hoc test confirmed these findings. Therefore, we concluded the following: Juvenile criminal responsibility, based on the capacity for dialectical thinking, self-control, and empathy, is not positively correlated with age. Age is not the only basis on which to judge a juvenile’s criminal responsibility. More research that directly links age differences in brain structure and function to age differences in legally relevant capacities and capabilities is needed. Political countries should appropriately raise the minimum age of criminal responsibility and adopt the doli incapax principle in the judicial process. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Sikh Philosophy as a Philosophy-of-PracticeMonika Kirloskar-Steinbach (bio)Some recent publications on Indian philosophy argue that the colonial narrative about the philosophical traditions from the subcontinent was erroneous. It wrongly suggested that the erstwhile Brahmanic thought embodied by the darśanas was an exhaustive representation of philosophical activity on the subcontinent and that this activity came to a grinding halt with the onset of European modernity. In an attempt at rectifying this (...) story, one path proposed by philosopher Vrinda Dalmiya (Dalmiya 2016, p. 125) is to cognize and fix the "epistemophilic excesses" in the field, that is, the obsessive compulsion in conventional academic philosophy to engage in theory for theory's sake. In the study of Indian philosophy, this malady manifests as the practice of channeling philosophical analysis solely through a darśanic framing. This monofocal lens, however, is unable to reflect either the diversity of practices on the ground or values like intellectual freedom that drive some such practices.Arvind-Pal Mandair's Sikh Philosophy: Exploring Gurmat Concepts in a Decolonizing World (Bloomsbury, 2022), discussed here in this forum, speaks to these concerns and offers a possible way forward. Sikh Philosophy advocates a liminal perspective from which to engage with the set of philosophical practices that emanated on the subcontinent around the figure of Guru Nanak (1469–1539) and the teachings of the Sikh gurus (gurmat). In the first part of my response, I will bring into this conversation Mandair's philosophical orientation to ask whether and how he would contribute to that debate. In the second part, I will project the haumai—one concept doing much of the work in Sikh Philosophy—as one viable path that may be able to contribute to the correction of the epistemophilia currently afflicting a judicious study of world-philosophical traditions.In my limited understanding, Mandair's rendition of the haumai may serve as one component that could be implemented fruitfully in broadening the perspective on Indian philosophy. Mandair observes that a postcolonial sensibility demands a philosophical orientation that does not continue its proprietary attitude toward philosophical positions. I share his view. Instead of parading these positions as possessions that embellish one's academic finesse, they should be considered as ways of navigating life adequately. In doing so, however, the making of such navigational routes may profit from a deliberate reflection on them from different standpoints. [End Page 348]Halting Exclusivist Historiographical Trends in PhilosophyTwo recent handbooks on Indian philosophy reflect the growing awareness that changes in the field's self-understanding are imperative, should imperialist and colonial historiographies that affect this understanding be upturned. Jonardon Ganeri's editorial introduction to the Oxford Handbook of Indian Philosophy—"Why Indian Philosophy? Why Now?"—argues that students of Indian philosophy should overcome the routinized fixation on the classical darśanas. In developing their accounts, they should factor in the "regionality, vernaculars, subaltern communities, [and] eccentrics" through which "scholarly networks, nodes of philosophical activity, transnational encounters, and contexts of philosophical invention" arose on the subcontinent (Ganeri 2017, p. 2). This broader approach would, in his view, not only be viable in halting the elitist and exclusivist historiography that was the default mode in the recent colonial past. In addition, it would be better equipped to grasp the richness of practices on the ground.Accordingly, his Handbook departs from the handbook genre on one core point: instead of delivering a supposedly comprehensive study of positions that would be indispensable to the reader to understand the intricacies of the field marked out as Indian philosophy, this Handbook chooses to narrate one multi-perspectival story about practices on the subcontinent that were philosophically motivated and are worthy of study today. It suggests through this move that there are other such possible stories that can be narrated. Relatedly, Purushottama Bilimoria and Amy Rayner's History of Indian Philosophy strives as well to make a case to go beyond the darśanic mold. It includes a variety of philosophical positions located on its peripheries. For example, Sikh philosophy, which notably is not included in the Ganeri volume, is incorporated here as a tradition that engaged darśanic practices. Balbinder Singh Bhogal, the author of... (shrink)

In light of the many corporate scandals, social and ethical commitment of society has increased considerably, which puts pressure on companies to communicate information related to corporate social responsibility (CSR). The reasons underlying the decision by management teams to engage in ethical communication are scarcely focussed on. Thus, grounded on legitimacy and stakeholder theory, this study analyses the views management teams in large listed companies have on communication of CSR. The focus is on aspects on interest, motives/reasons, users and problems (...) related to corporate communication of CSR information. A questionnaire survey and in-depth interviews confirm that there is a distinct trend shift: towards more focus on CSR in corporate communication. Whilst this trend shift started as a reactive approach initiated by the many corporate scandals, the trend shift is now argued to be of a proactive nature focussed at preventing legitimacy concerns to arise. These findings are significant and interesting, implying that we are witnessing a transit period between two legitimacy strategies. Furthermore, the findings suggest that the way respondents argue when it comes to CSR activities coincides with consequentialism or utilitarianism, i. e. companies engage in CSR activities to avoid negative impacts instead of being driven by a will to make a social betterment or acting in accordance with what is fundamentally believed to be right to do. This provides new input to the ongoing debate about business ethics. The findings should alert national and international policy makers to the need both to increase the vigilance and capacity of the regulatory and judicial systems in the CSR context and to increase institutional pressure to enhance CSR adoption and CSR communication. Furthermore, stakeholders need to be careful in assuming that CSR communication is an evidence of a CSR commitment influencing corporate behaviour and increasing business ethics. (shrink)

Much legal research focuses on understanding how judicial decision-makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision-making. We observe that discretionary decision-making can best be modeled using three independent axes: bounded and unbounded, defined and undefined, and (...) binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains. (shrink)

In an attempt to explore the role of argumentation in scientific inquiry, I explore the conception of argument that appears fruitful in the light of the recent trends in the philosophy of science, away from logical empiricism, and toward a greater emphasis on change, disagreement, and history. I begin by contrasting typical instances philosopers’ theories of both empiricism and apriorism, with typical instances of scientists’ uses of these two attitudes, suggesting that such practice shows a judiciousness lacking in epistemological (...) theory. Then I examine at some length three important version of scientific judgement, namely Einstein's opportunism, Boltzmann's pluralism, and Huygens's eclecticism. I go on to discuss some recent work in the philosophy of science, exploring connections between the notion of judgment and Feyerabend's anarchism, Harold Brown's view of rationality, and Dudley Shapere's analysis of scientific change. All of this suggests a notion of argument in the sense of informallogic, and I examine some aspects of Galileo's work in its terms. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Book Reviews The Growth of Medical Thought. By Lester S. King. (Chicago: University of Chicago Press, 1963. Pp. ix + 254. $5.50.) The author of this book is "a pathologist with a background in history and philosophy," to quote from the jacket. This combination of interests is reflected in the Preface itself, where it is stated, "The history of medicine is part of the history of ideas." However, the (...) text itself, unfortunately, is too episodic in treatment and too homiletic in tone to do justice to the explicit goal the author sets for himself at the very outset, which is "to indicate the growth of medical science and the patterns of medical doctrine," by a consideration of a few key figures in the history of Western medicine who represent certain distinct trends in medical theory. In his previous book, The Medical World of the 18th Century (1958), the author likened the historian to the photographer, but he forgot to bring out that a good historian needs (to exploit his own analogy) a movie camera in order to exhibit adequately the growth of things. An ordinary camera will not do for historiography. The volume opens with ancient Greek medicine and ends with the pioneers in molecular pathology. In the present reviewer's opinion, the most effective chapters of the book are the ones dealing with two of the most controversial figures in the whole history of medicine, namely, Galen and Paracelsus. For there more than anywhere else in the book, we learn the sobering lesson that just because, say, Galen's "doctrine of faculties" in Roman medicine is "wrong" (that is, false in fact), from the standpoint of modern science, is no reason for calling it "foolish" (that is, false in theory) --Moli~re to the contrary notwithstanding (p. 77). While Galen's Aristotelian "modes of thought may seem somewhat strange to us," Dr. King insists, "we must preserve a judicious historical attitude" (p. 49) towards them just the same, if our objective is to understand their raison d'etre in the first place. He uses the same criterion with respect to Paracelsus, even though he spoils his case a bit by contradicting himself concerning that bombastic figure of Renaissance medicine, describing him on one page as "essentially a poet and not a scientist or philosopher" (p. 125), and then declaring on another that he "was at heart a philosopher" (p. 137). Now, no matter whether we agree with the author's interpretation of Paracelsus as a "Neo-Platonist" in medicine, he deserves credit for discussing [2s7] 238 HISTORY OF PHILOSOPHY that enigmatic Swiss iatrochemist sympathetically. In any event, Dr. King's sympathetic approach to Paracelsus manages to throw considerable light on the Paracelsian advice to all future physicians: Don't read books! Read the stars, but read them "in Neo-Platonic fashion" (p. 114)! While the author is "judicious" about Galen and Paracelsus in particular, he is far from being so when it comes to Friedrich Hoffmann, a medical materialist and "systematist" from Halle in the eighteenth century. Paradoxically enough, Dr. King has a marked antipathy for the doctor of "sympathy " himself (p. 173). Incidentally, the only other physician in the book who is not liked--apparently for his being polemical (p. 215)--is a famous fellow-pathologist of the last century, Rudolf Virchow. Still, it is only fair to add that the author acknowledges fully Virchow's important contributions to the field of cellular pathology. Finally, Dr. King not only has his likes and dislikes as to the medical men he actually selects from modern medicine to represent changes in theory of disease, but he seems also to have a definite bias in another and more serious sense. With the exception of the Epilogue and Chapter IV, which includes Vesalius and Harvey as well as Hoffmann, all the episodes of modern medicine deemed worthy of study derive from the Germanic world. Curiously enough, although there is no discussion of the germ theory of disease as such in the book, there is mention of Koch, but not of Pasteur. And French physiologist Claude Bernard, the great medical philosopher who tried to do in the nineteenth century for scientific medicine what... (shrink)

The author proposes and employs the Avalanche Perspective in analysing the entry of women into the Korean judiciary from the first pioneers in 1952 to the present. Starting from a general atmospheric warming trend towards women in postwar Korea, there developed instability in the status quo, then a breakthrough that led to a cascade of women participating in the legal profession. Although cultural resistance and political obstacles remained to be overcome, this quantitative expansion ultimately led to a greater acceptance of (...) women’s participation in the judicial arena. Significant judicial changes that furthered the causes of women in contemporary Korea were coincident with women being members of the judiciary. The quantitative changes of the past fifty-six years opened the possibility of qualitative progress for women in the Korean judiciary. The Avalanche Perspective as applied to the judiciary in Korea, provides an understanding of the forces at work that have had a profound effect upon the place of women in the new cultural and political reality of the Korean people. (shrink)

Originally published in 1937 on the occasion of the five hundredth anniversary of the birth of Isaac ben Judah Abravanel, this book contains six essays on his teaching and thought by a number of scholars. The authors explain key points such as the Iberian background to Abravanel's work, his differences with other philosophers of his age, and the influence of his son, Leone Ebreo, on the Renaissance. This book will be of value to anyone with an interest in Abravanel's life (...) and teaching or in Medieval Jewish philosophy. (shrink)

In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of (...) the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks. (shrink)

This paper aims to present how logic may undermine a parliamentary assault on democratic institutions based on the analysis conducted with reference to the so-called Polish constitutional crisis. I analyse whether a law can be reviewed on the basis of this law itself. The Polish Constitutional Tribunal faced such a problem while passing the verdict of 9th March, 2016, regarding the constitutionality of the amendment to the Statute on the Constitutional Tribunal from 22nd December, 2015. This problem, called a ‘verdict (...) paradox’, was claimed to be a type of the Liar paradox. I argue that, contrary to the common view, the problem of the verdict paradox is not based on the Liar paradox; for this purpose, a logical analysis is applied to four variants of a reasoning with regard to the constitutionality of the said amendment. The distinction between two levels of analysis concerning emerging reasonings, namely an abstract level and a concrete level placed in the context of the legal system, is also introduced. This paper demonstrates that although only two variants of the reasoning concerning a law’s judicial review based on the law itself involve logical contradiction, the possibility of employing reasonings from other variants must be excluded, albeit due to alternative reasons. Therefore, the Constitutional Tribunal’s decision to avoid the verdict paradox by passing over the reviewed provisions in the review process was correct and might be perceived as an example of how logic and reason can defend the institutional guarantees of political freedom. (shrink)

The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.