This paper argues for a fundamental overhaul of the current competence constellation in the EU, which is necessary to address the problem that the current arrangement does not respect the important values that it is supposed to uphold, namely those of democracy, subsidiarity and national diversity. While pretending otherwise, it effectively contains neither negative nor positive EU integration in areas of Member State competence. Furthermore, it enables European integration of these areas through even less accountable intergovernmental mechanisms. It will be (...) argued that the root cause of this problem is that demarcation of competences as a method to contain the EU does not work, because such an approach of ‘categorical federalism’ is bound to fail, especially in the EU context since it is incompatible with the functionality that is written in the legal order’s DNA. It is therefore proposed to dispose of demarcation as a way to contain EU action and instead to openly recognise the inevitable broadness of the EU’s powers while containing the exercise of these powers through a democratisation of the legislative process. The paper tables a number of proposals that on the one hand enhance the EU’s formal legislative powers, while on the other hand strengthen national parliaments in their powers politically to review proposed EU legislation. (shrink)

The focus of my dissertation is a general and comprehensive examination of Locke’s view of divine power. My basic argument is that John Locke is a theological voluntarist in his understanding of God’s creative and providential relationship with the world, including both the natural and moral order. As a voluntarist, Locke holds that God freely imposes both the physical and moral laws of nature onto creation by means of his will: this contrasts with the intellectualist perspective in which the (...) laws of nature emerge from the essences of things. For Locke, there are no intrinsically necessary laws in the created order: both physical and moral laws are arbitrary determinations of the divine will. While these laws are not intrinsically necessary, they are hypothetically necessary. Hypothetical necessity involves things that could have been otherwise, but which are necessary based on the supposition of a free action and other relevant conditions pertaining to the actor. Concerning God, we can understand hypothetical necessity in the following way: □ [ → Y]. X is a variable that ranges over a subset of contingent propositions about actions. ‘P’ is the proposition ‘God is perfect’. And Y is any proposition that is a necessary consequent of both X and P. In any possible world in which God performs X, it is the case that Y will obtain. Supposing that God decides to create beings like us, God must of necessity craft the moral laws of nature in a way that harmonizes with our nature. What grounds this necessity is that God must act consistently with the perfection of the divine nature: to give us a different law would be less than perfect. Furthermore, I argue that certain physical laws of nature – those that help to realize our nature – are also hypothetically necessary. (shrink)

LB.2 This proposition implies that you hold it to be at least possible that some four hundred men should, by some process or other, become invested with the right to make laws of their own – that is, laws wholly of their own device , and therefore necessarily distinct from the law of nature, of the principles of natural justice; and that these laws of their own making shall be really and truly obligatory upon the people of the United States; (...) and that, therefore, the people may rightfully be compelled to obey them. (shrink)

This article examines the power relationship between the prime minister and ruling party legislators. I theoretically explore the power relationship between the prime minister and ruling party legislators, and examine legislators' parliamentary voting, focusing on the political process of postal service privatization of 2005. This analysis presents three arguments. First, theoretically, when the prime minister attempts to achieve a project, risking his or her job, he or she can firmly control ruling party legislators. Second, empirically, the anti-Koizumi legislators' (...) rebellion was based on their unfounded assumption about the prime minister's behavior or ultimate outcomes. Third, the anti-Koizumi legislators' electoral incentives to secure their reelection and ruling incentives to weaken or overthrow the Koizumi Cabinet drove them to rebel against the prime minister in the Lower House, while the ruling incentives alone caused the rebellion in the Upper House. (shrink)

Developments in professional practice can be related to ongoing changes in relations of power among professionals, which often lead to changes in the boundaries of practices. The differing contexts of practices also influence these changing relations among health professionals. Legislation governing professional practice also differs from country to country. In Brazil, over the past 12 years, in a climate of deep disagreement, a new law to regulate medical practice has been discussed. It was sanctioned, or made into law, but (...) with some notable changes, in July 2013. Of interest to us in this paper are the ways the proposed legislation, by setting out the boundaries and scope of medical practice, ‘interfered’ in the practices of other health professions, undermining many ‘independent’ practices that have developed over time. However, even taking into account the multiple routes through which practices are established and developed, the role of legislation that seems able to contradict and deny the historical realities of multiple, intersecting practices should be critically interrogated. In this paper, we use the theoretical resources of poststructuralist thinking to explore gaps, ambiguities, and power relations implicit in the discourses that constituted this law. We argue that although the new law can be understood as a social and political device that will interfere in the organization of other health professions’ practices, such legislation is only part of what constitutes change in a consolidated professional practice. And while it is important to understand the effects of such legislation, healthcare practices are also realized or ‘made real’ through ongoing relations of knowledge and power, including, as we will see in this case, activities of resistance. The problem, then, is to understand the practical arrangements, including legislation, traditions and routines, values and knowledge that come to shape the practices of nursing in a particular context. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject (...) who is granted such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

Environmental law and environmental protection have long been portrayed as requiring tradeoffs between incompatible ends: "jobs versus environment;" "markets versus regulation;" "enforcement versus incentives." Behind these views are a variety of concerns, including resistance to government regulation, skepticism about the importance or extent of environmental harms, and sometimes even pro-environmental views about the limits of Earth's carrying capacity. This framework is perhaps best illustrated by the Trump Administration, whose rationales for a host of environmental and natural resources policies have embraced (...) a zero-sum approach, seemingly preferring a world divided into winners and losers. Given the many significant challenges we face, does playing the zero-sum game cause more harm than good? And, if so, how do we move beyond it? This book is the third in a series of books authored by members of the Environmental Law Collaborative (ELC), an affiliation of environmental law professors that began in 2011. In it, the authors tackle the origins and meanings of zero-sum frameworks and assess their implications for natural resource and environmental protection. The authors have different angles on the usefulness and limitations of zero-sum framing, but all go beyond the oversimplified view that environmental protection always imposes a dead loss on some other societal value. (shrink)

The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' to 'interpreters' with the transition from modernity to post-modernity. The book discusses the role of intellectuals in the modern world. Bauman connects this with current analyses of modernity and post-modernity. The theme of the book is that the tasks of intellectuals change from being 'legislators' (...) to 'interpreters' with the transition from modernity to post-modernity. (shrink)

Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate--what Tuckness terms the "legislative point of view"--has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke made (...) explicit in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory. (shrink)

An empirical exploration of the effects on legislative structure, distribution of influence, power, and decision outcomes, of recent changes in the Congress and state legislatures. The book focuses on changes in rules, parties, and committees and the impact or lack of impact of these changes on subsequent activity. Originally published in 1978 by D.C. Heath and Company. Co-published with the Policy Studies Organization.

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional (...) "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

The political scene behind Japan's legislation in 2000 was uneasy and flurried. The ascent to political power by Prime Minister Yoshiro Mori following the sudden death of Prime Minister Keizo Obuchi, the shift in political framework caused by the separation of the Liberal Party from the coalition government, and the general election came one after the other in a series of restless succession.

Research on women's political representation in postsocialist Europe has highlighted the role of cultural and political factors in obstructing women's access to legislative power, such as the prevalence of traditional gender stereotypes, electoral systems, and the absence of a feminist movement. Yet, the role of women political elites in enhancing or hindering women's access to political power in the region has so far remained uncharted. This article seeks to fill some of the existing gaps in this literature (...) by examining the views of women politicians with regard to women's political underrepresentation and their assessments of strategies for redressing this imbalance. Findings from the analysis reveal that although women politicians recognize gender inequalities in representation as a problem requiring intervention, how the problem is perceived, and the preferred measures to deal with it, is largely shaped by the social and cultural context in which these actors are embedded. (shrink)

No enquiry into the making of the modern European state can ignore the part played by law. This comprehensive scholarly volume examines in detail how states availed themselves of juridicial techniques in order to mould their institutions, to take control over their territory, and to exercise power over their subjects. The contributors are leading scholars in the field, who explore the administration of justice and the promulgation of legislation across Europe over a period of several centuries, in order to (...) uncover the role of the law in the birth and development of the European state. The Origins of the Modern State in Europe series arises from an important international research programme sponsored by the European Science foundation. the aim of the series, which comprises seven volumes, is to bring together specialists from different countries, who reinterpret from a comparative European perspective different aspects of the formation of the state over the long period from the beginning of the thirteenth to the end of the eighteenth century. One of the main achievments of the research programme has been to overcome the long-established historiographical tendency to regard states mainly from the viewpoint of their twentieth-century borders. (shrink)

The metaphysics of legalism -- The individual in context -- Rationality in context -- Freedom in context -- Strong legalism or the absent theory of legislation -- Legitimacy and legitimation : from strong legalism to legisprudence -- From proxy to trading off : the principles of legisprudence -- Legisprudence and the duties of power : a legisprudential assessment of rational legislation.

Battles against domestic violence in the People’s Republic of China have been carried out since 1995. In this study, legislative progression of laws related to domestic violence is first examined and clarified; second, findings from the legislative review are investigated on the basis of civil and criminal cases; third, the interaction among social and traditional norms, legislation, and judicial outcomes is explored and interpreted from a sociosemiotic perspective. It is found in this study that: 1) legislation and judicial (...) practices of domestic violence in the P. R. C. are closely intertwined with social and traditional norms; 2) there is a gap between judicial practices dealing with domestic violence and the legislation; 3) the Anti-Domestic Violence Law offers a notch for state powers to embrace the familial relationship and to safeguard a victim. (shrink)

The Critique of Pure Reason—Kant’s First Critique—is one of the most studied texts in intellectual history, but as Alfredo Ferrarin points out in this radically original book, most of that study has focused only on very select parts. Likewise, Kant’s oeuvre as a whole has been compartmentalized, the three Critiques held in rigid isolation from one another. Working against the standard reading of Kant that such compartmentalization has produced, The Powers of Pure Reason explores forgotten parts of the First Critique (...) in order to find an exciting, new, and ultimately central set of concerns by which to read all of Kant’s works. Ferrarin blows the dust off of two egregiously overlooked sections of the First Critique—the Transcendental Dialectic and the Doctrine of Method. There he discovers what he argues is the Critique’s greatest achievement: a conception of the unity of reason and an exploration of the powers it has to reach beyond itself and legislate over the world. With this in mind, Ferrarin dismantles the common vision of Kant as a philosopher writing separately on epistemology, ethics, and aesthetics and natural teleology, showing that the three Critiques are united by this underlying theme: the autonomy and teleology of reason, its power and ends. The result is a refreshing new view of Kant, and of reason itself. (shrink)

Modality and negation, as two important linguistic features used to realise subjectivity, have been investigated within various disciplines, such as logic, linguistics and philosophy, and law. The interaction between modality and negation, as a relatively new and undeveloped domain, has however not been paid due attention in scholarship. This corpus-based study investigates three aspects of their interaction: the differentiation of the deontic value by negation, the categorization of deontic modality in Hong Kong legislation via negation, and distribution patterns of deontic (...) modality, especially distribution patterns of the negation of modality, in Hong Kong legislation. This study shows that negation is a powerful linguistic mechanism not only for determining the nature and functions of modality, but also for determining the value of modality. This study also reveals that negation helps us to investigate the distribution of deontic modality in Hong Kong legislation and hence revisit the legal framework in Hong Kong. A study taking into account the discursive and professional aspects of the interaction between deontic modality and negation will provide a theoretical basis for the natural language processing of modality and negation in legislation and also offer important implications for the study of negation and modality in general contexts. (shrink)

In Rousseau’s political theory, the Legislator’s task is to draft the best possible Constitution for a given people. His goal is to maintain the public liberties and to ensure the preservation and prosperity of the State. However, the main problem is “to put law above men” – that is: above the citizens in general and the members of the executive in particular. This paper examines how the Legislator takes up the problem by educating the citizens. The process of education implies (...) the development of reasonable thinking as well as the education of desire. Reasonable thinking is achieved through the formation of the general will. Education of human desire must be understood with respect to the distinction between amour-propre and amour-de-soi. The extension of amour-de-soi to a communityof fellow citizens plays a central role in the formation of the general will and contributes to the development of solidarity among the different social classes. Education of amour-propre plays a role in the development of a national identity. It plays also a role in the political governance of individual desires by means of an administration based on a hierarchy of functions, supervised by public opinion. However, the political governance of desire is challenged by the invisible power of money, which Rousseau tried to neutralize by limiting and slowing down the monetary circulation. (shrink)

The essential nature of legislative power is to make the laws; that of executive power is to execute those law. The difference between the two is both substantial and significant; it is the difference between the rule of arbitrary power and the rule of law. This paper will seek to trace the genesis of an independent judicial power, in both theory and practice, through an examination of sections of The Constitutions of Clarendon, The Assize of (...) Clarendon, Hobbes’ Leviathan, Locke’s Second Treatise, Montesquieu’s Spirit of the Laws, as well as The Federalist Papers. Moreover, it will seek to establish its executive nature and to explain why it is so often (at least presently) misunderstood to be akin to the legislative power. (shrink)

We should now be able to come to some general conclusions about the main lines of Cuvier's development as a naturalist after his departure from Normandy. We have seen that Cuvier arrived in Paris aware of the importance of physiology in classification, yet without a fully worked out idea of how such an approach could organize a whole natural order. He was freshly receptive to the ideas of the new physiology developed by Xavier Bichat.Cuvier arrived in a Paris also torn (...) by many overlapping debates on the nature of classification, and in particular that between the natural and artificial systems. The very validity of the enterprise of classification was questioned in many quarters. Cuvier's achievement on his entry into the Parisian world of science was not simply to establish himself as a highly competent anatomist: far more important, he also began to use ideas from many different specialties to change completely the notion of what was involved in natural history.124 At the same time that he himself swung away from the guiding image of the field naturalist as the ideal of the specialty, he took ideas from the new physiology to answer questions about the order of the animal world, and from comparative anatomy to resurrect extinct creation — and to come to conclusions from that creation about the history of the forms of life and the manner of their succession. He showed himself able to alter the relationships between natural history and many other fields of study in a way that implied, rightly or wrongly, his own complete mastery over such a movement. Partly he was able to do this because the ideas he borrowed were not themselves logically articulated and thus could be easily adapted and refocused for many different specific purposes. The value of the heuristic possibilities inherent in the idea of life, for example, far outweighed its inability to generate full systems of classification. Cuvier also consistently refused to consider in science matters relating to the first causes of events. Freed from the consideration of first-order phenomena, he was able to use second-order explanations across a far wider field of applicability. Personal doubts about the validity of a theology that had used science in order to bolster its own claims were combined here with the strong influence of the Kantian critique of the limits of human reason.125Cuvier's characteristic mode of procedure was that of intellectual appropriation and a bold capacity for altering the relationships between different fields of knowledge, rather than, with the exception of taxonomy, the technique of expanding their subject matter. His claims to originality came, first, from this reappropriation and reorientation and, second, from the sheer scope of his work, which aimed at nothing less than the cataloging and classification of all animate objects.126 They rested also on his acute use of his assertion of a certain relationship with the past of his subject. Very often he would present this history in such a way as to obscure his own intellectual genealogy, and often too he would give differing accounts of the priority of use of an idea in order to distract attention from the questionable exactitude of his own claims to originality. Cuvier came to Paris at precisely the time when society and institutions were most profitably malleable for a newcomer; it was also a time when many scientific disciplines had reached a stage advanced in terms of their factual content, yet relatively inadequate in conceptual organization. They were ripe for takeover by large-scale organizing ideas such as the animal economy and the subordination of characteristics. Paleontology is a particularly good example of a specialty in this particular form of underdevelopment in 1795.Cuvier paid a high price for his initial success. His electic applications of large-scale organizing ideas tended to mean that little of his own work had complete coherence at all levels. Ideas, as we have seen, that proved capable of providing a complete reform of the larger groups of the animal kingdom were incapable of producing its detailed working-out in the taxonomy of smaller groups, which had to be supplied from observed analogical correlations. Further, his physiological approach to classification involved the breakdown of strict correspondence between organs and functions, which left the way open for workers such as Geoffroy St. Hilaire gradually to tilt the balance away from the study of the correlations of hierarchies of functions, and toward morphology as the basis of the order of nature. Cuvier's brilliant appropriations from physiology from the beginning, therefore, contained the seeds of conflict with Geoffroy.Cuvier's eclectic approach made it very nearly impossible for him to present a clear idea of the ways in which the life sciences could be said to be lawful. In spite of his efforts to assimilate them to the position of the physical sciences in this respect, he was forced in the end to accord only an ambiguous status as “laws” to observational correlations. From this area of failure came much of the attempt to give his own two laws — the correlation of parts and the subordination of characteristics — predictive qualities, particularly in relation to paleontological research.It is not surprising that Cuvier's title as the “legislator” of natural history should represent more a claim than a reality. How, then, was he able to emerge as the leading French naturalist of his day? First of all must be adduced the sheer scale of his undertakings. Then comes his expertise as a practical anatomist, and the range of different topics toward which he turned his interest. His collaborators cannot be given credit for his output nor, as we have seen, for slavish adherence to his ideas. Cuvier was able to successfully claim to have dominated the underdeveloped specialties, such as paleontology, and turned them into a major heuristic input into both geology and comparative anatomy; but in other fields, such as physiology, he appropriated concepts and encouraged research but made little impact on the field himself. His attempts in 1812 to head off, or neutralize and absorb the growth of morphological studies landed him in a dangerously rigid position, which despite his encouragement of the new physiological research under the Restoration made further elaboration of his own conceptual underpinnings almost impossible.Cuvier's authority in the scientific world would in any case have been great because of his substantive achievement in taxonomy, but the rest of his work had enough ambiguities and dislocations for it to need the support of his political and social power. Cuvier's detractors seized on a vital fragment of the truth when they accused him of finding the political dimension all-important: it obscured the disjunctions in his theories and at the same time gave him the authority to make new claims for the status of the observational sciences - and for their relations of power with their surrounding specialties. Cuvier's science both thrived on and was halted by the power games of intellectual appropriation, manipulation of the past to confirm the present, and continual claims for hegemony. (shrink)

The main purpose of legal interpretation is to create conditions for the effective functioning of law and its components by clarifying their true content, which eliminates any doubts and ambiguities. The purpose of this article is: first, to analyze the provisions of current Ukrainian legislation for identifying the general approaches embodied in it and the principles for the implementation of legal interpretation activities by state power bodies; secondly: presentation on the basis of modern achievements and developments of legal science (...) of the system of measures for standardization of such activity, bringing it in line with the needs of law enforcement practice. The solution of the set tasks was carried out using the method of philosophical dialectics, a system of general scientific and special scientific methods of cognition, which are based on the principles of objectivity, comprehensiveness, complexity. Based on the analysis of the normative material, it is concluded that there is no single harmonized approach in the Ukrainian legislation on the procedure for providing clarifications of the content of normative-legal acts. The authors give arguments on the need to clarify and streamline the legal interpretation activity by state bodies and propose a number of measures to achieve this goal. Based on the conducted analysis of the normative material, the authors outline the main problematic issues of the legislative definition of the basics of legal interpretation and provide specific proposals for improving the current legislation in this area. (shrink)

My analysis of the constitutional foundations of judicial review has been criticized by Paul Craig; but his objections confuse the ‘constructive’ account of legislative intent I defend with the ‘literal’ conception (reflecting the views of individual legislators) I expressly repudiate. He thinks we must choose between legislative intent, literally conceived, and common law principle. This mistake exemplifies the peculiar character of Craig's ‘common law model’ of judicial review, in which the requirements of the rule of law, on one (...) hand, and the relevant statute, on the other, exist in separate mental worlds. That model is conceptually confused, rejecting the doctrine of ultra vires that (unqualified) legislative supremacy entails, and ultimately grounded in a wholly implausible view of the relationship between common law and statute. It subordinates both statutory text and purpose to common law doctrine, treated as largely self-contained and impervious to context. It ignores the interdependence of legislative and judicial power, impeding a genuine integration of statutory command and common law principle. (shrink)

Many of the world’s mental health acts, including all Australian legislation, allow for the coercive detention and treatment of people with mental illnesses if they are deemed likely to harm themselves or others. Numerous authors have argued that legislated powers to impose coercive treatment in psychiatric illness should pivot on the presence or absence of capacity not likely harm, but no Australian act uses this criterion. In this paper, I add a novel element to these arguments by comparing the use (...) of the harm to others justification for coercive treatment in mental illness with its use in illness due to infectious disease, and suggest a double standard applies. People with mental illness are subjected to coercive treatments at levels of risk to others far, far lower than would precipitate coercive treatment in people with influenza. In effect, this element of mental health legislation represents an example of sanism—state-sanctioned discrimination against people with mental illnesses. (shrink)

Medicine, Power, and the Law demonstrates that criminal and civil justice interact with medicine and public health more than is presently understood. The book focuses on the role of healthcare practitioners and an array of other professionals across industries in identifying wrongdoers, reporting behavior, and testifying on behalf of the state or government agencies. It also covers circumstances in which law enforcement relies on medicine for evidence or support in ways that compromise medical ethics. By reporting or testifying as (...) experts, a range of people, from specialist pediatricians to flight attendants, can have a life-changing impact on individuals in the name of public health or medicine. People who work in hospitals, social work settings, and even airlines, often contribute to wrongful and aggressive criminal and civil actions against society's most vulnerable people, including parents, older adults, and people living with poverty. The book explores a number of examples, including police use of medicine as a restraint or the collection of blood as evidence and the risks of opting out of certain scientific discoveries, such as pharmaceuticals. It describes the harms that may come to those who engage in suboptimal but generally heretofore legal child-raising behaviors, and people opting to live independently as older adults. These can lead to civil and criminal charges when noticed by those in a position of power. Medicine, Power, and the Law is an important contribution for researchers and practitioners in medicine, the law, and the expanding field of bioethics. (shrink)

Democratic countries, such as Australia, face the dilemma of preserving public and national security without sacrificing fundamental freedoms. In the context where the rule of law is an underlying assumption of the constitutional framework, Emergency Powers in Australia provides a succinct analysis of the sorts of emergency which have been experienced in Australia and an evaluation of the legal weapons available to the authorities to cope with these emergencies. It analyses the scope of the defence power to determine the (...) constitutionality of federal legislation to deal with wartime crises and the 'war' on terrorism, the extent of the executive power and its relationship to the prerogative, the deployment of the defence forces in aid of the civil power, the statutory frameworks regulating the responses to civil unrest, and natural disasters. The role of the courts when faced with challenges to the invocation of emergency powers is explained and analysed. (shrink)

It has become almost commonplace to claim that utilitarianism was, from its inception, an imperialist theory. Many writers, from Bentham’s own followers to recent scholars, have suggested that from Bentham onward, utilitarians reveled in the opportunity that they believed despotic power provided for the establishment of perfectly rational laws and institutions. A closer look at Bentham’s own views on empire, however, reveals a sharp break between his position on European colonies and that of followers such as James and John (...) Stuart Mill. For Bentham, the utilitarian doctrine led to criticisms of the empires of his day. Bentham is better understood as a participant in the late-eighteenth-century skepticism about imperial conquests and aspirations than he is as a proto-colonialist or a “Solon” of India. Once he is understood in this light, our picture of his successors, especially J. S. Mill, is revised as well. (shrink)

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of (...) how legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)

The article analyses the compulsory care of drug misusers in Sweden. An historical analysis of this field of work as a part of the Swedish welfare state highlights historically changing legislations, institutions, understandings and practices. Following Foucault, it is argued that it is impossible to distinguish between power and care and that confusion about coercive care is a result of not acknowledging power. Empirical studies of current social work point to the significance of different institutional settings. The author's (...) study of the Swedish probation service shows that social workers and clients may adopt different positions in relation to each other and that their experiences of the practice of social work depend on the congruence or disparity between these positions. The problematic role of motivation in coercive care is highlighted. While some scholars claim that motivation is not possible in coercive institutions, the author relates motivation to the caring power arguing that social work is always aimed at normality and that care is exercised to achieve normality. The promise of an improved life situation may make people in need of help adapt to the demands of the helper, and the caring power can be seen as a way to provide help for individuals who do not realize that they are in need of care. (shrink)

I elicit some of Foucault’s insights to provide a more realistic picture than is the norm in social and political theory of how best to identify and overcome domination. Foucault’s vision is realized best, I argue, by combining his account with two related conceptions of domination based on human needs and realistic accounts of politics that focus on agency, power and interests. I defend a genealogical, inter-subjective account of how the determination of needs and interests forms the basis of (...) ascertaining, on a continuum, the extent to which relations of power generate states of domination. To that end I propose institutional changes that would empower citizens in positive and negative ways: power over legislation in district assemblies and via veto and repeal; real control over representatives through various means; and decennial constitutional plebiscites. (shrink)

Heidegger’s critique of European nihilism seeks to expose self-legislation as the governing principle of central manifestations of modernity such as science, technology, and the interpretation of art as aesthetics. Need we accept the conclusion that modern constitutional democracies are intrinsically nihilistic, insofar as they give political and legal form to the principle of collective self-legislation? An answer to this question turns on the concept of power implied in constituent and constituted power. A confrontation of the genealogies of modern (...) subjectivity proposed by Heidegger and Blumenberg suggests that there is indeed a metaphysical core to the concept of constituent power developed by various political theorists, including Schmitt and Habermas. By contrast, closer consideration of the paradoxical relation between constituent and constituted power illuminates the ambiguity of collective self-legislation, which means both enactment of a legal order by a collective self and the enactment of a collective self by a legal order. To the extent that constitutional democracies are a way of preserving rather than dissolving this ambiguity, they imply an interpretation of power and human finitude that parries the charge of nihilism. (shrink)

There is widespread agreement that the significant threat of terrorist activity and the importance we attach to safety and security demands that terrorists and terrorist activity be stifled as quickly and effectively as possible. However, much dominant thought about the very nature or approach taken to anti-terrorism legislation has gone without critical reflection. Drawing on a recent article by contemporary political philosopher Ronald Dworkin, in this paper I shall examine whether the metaphor of a balance, with safety or security pitted (...) against individual rights or civil liberties, is an appropriate way to understand or approach anti-terrorism legislation. To simplify matters, I shall depart from close consideration of Canada's new anti-terrorism legislation (in particular the new power of preventive arrest which it creates), with the observation that it is reflective of many other countries' legislative response to terrorism. (shrink)

Presupposition is the semantic-pragmatic phenomenon whereby a statement contains an implicit precondition that must be taken for granted for that statement to be felicitous. This article discusses the role of presupposition in legislative texts, using examples from Swiss constitutional and administrative law. It illustrates how presuppositions are triggered in these texts and what functions they come to serve, placing special emphasis on their constitutive power. It also demonstrates how legislative drafters can distinguish between “good” presuppositions and “bad” (...) presuppositions by weighing their main advantage, conciseness, against their main flaw, reduced transparency. The present study argues that, if employed carefully, presuppositions can be a useful stylistic means to keep legislative texts free from unnecessary clutter that merely elaborates on the obvious; however, it also suggests that, if applied wrongly, presuppositions can camouflage the duties and obligations placed on the subjects of a law and thus impede its accessibility and its efficient and effective implementation. (shrink)

Biopower is a prominent force in mental health, with psychiatry having a strong influential grasp across the areas of definition of mental disorders, diagnosis, care, treatment, and legislation. One area that impacts upon the everyday lives of community mental health service users is treatment, largely dominated by medication. This paper will explore biopower in relation to the practices and management of mental health service users’ medication regimens. Michel Foucault’s insistence in his later work that power is the product of (...) bodily forces will be drawn upon in highlighting the importance of undertaking analysis of medication regimens. Taking examples from a project focused on service user experience, the concept of ‘somatic enactment’ is suggested as a means through which to open up biopower to the localised concerns of service users with regard to the issue of managing one’s body on a day to day basis, as affected by medication. In doing so, the author seeks to move towards a notion of biopower that does not only work on a ‘top down’ manner, and in which processes of embodied subjectification can be illuminated, without recourse to a straightforward power-resistance framework. (shrink)

The notion of a distinct 'executive power' was famously employed by Locke and Montesquieu; but the term potestas executiva, coined by medieval canonists, had been adopted by the early sixteenth-century theologian Cajetan, who located it as regimen medium in his defence of papal power against a revived 'conciliarist' challenge. The distinction between legislative sovereignty and a power effectively executive was used in post- Reformation political controversy and in Bodin's République. From those beginnings it was developed by (...) mid-seventeenth-century writers, from whom it passed to Locke; and the concept of the executive as a 'mediating' power was notably echoed by Rousseau. (shrink)

Researchers have consistently identified the disparity between teachers’ practical and legal knowledge regarding teachers’ right to discipline students. However, few studies have investigated teachers’ construction processes that form construction outcomes, which would help navigate the role of legislation in school discipline. This study contributes to a holistic picture of the neglected disciplinary rights that teachers construct in teaching practice and their underexplored attitude toward the law, using an interview-based constructionist method on twelve teachers of Lvliang city in a Chinese K-12 (...) context. The findings suggest that the participants prefer to acquire discipline knowledge by interacting with multiple power relations in their local environment and that their knowledge is historically and culturally specific. Although the disciplinary right they construct is never static, balanced, or essentialised, the participants’ constructions are commonly not in line with legal provisions or the aims of the law. Furthermore, school discipline legislation plays a silent role in empowering teachers to discipline students, but it is more visible in holding back teachers’ use of corporal punishment. These findings illustrate the complexity of implementing school disciplinary law as a universal national policy. (shrink)

BURGESS J and PURKIS ME. Nursing Inquiry 2010; 17: 297–308 The power and politics of collaboration in nurse practitioner role developmentThis health services study employed participatory action research to engage nurse practitioners (NPs) from two health authorities in British Columbia, Canada, to examine the research question: How does collaboration advance NP role integration within primary health‐care? The inquiry was significant and timely because the NP role was recently introduced into the province, supported by passage of legislation and regulation and (...) introduction of graduate education programs. In separate and concurrent inquiry groups, the NPs discussed their practice patterns, role development progress and understanding of collaboration and role integration. The inquiry revealed the political nature of the NP role and the extent to which NPs relied on collaborative relations at all levels of the health system to advance role integration. Given that NP role development is still at an early stage in this province, as well as other provinces in Canada, this study provides important insights into the power and politics of role development, and offers direction for future role advancement. (shrink)

This corpus analysis of linguistic and semantic features in French parliamentary debates concerning online hate speech regulation, highlights tensions between state powers and private rights. Two key themes are identified: first, the _problem of definition_: how such online content is defined in the debates, and second, the _problem of regulation_: how the debates negotiate the supra-jurisdictional and individual jurisdiction issues involved, in regulating both the global online content and the responsibilities of the owners of the platforms who manage the content. (...) For this analysis, the authors created a corpus of French National Assembly Examination Committee discussions and public sessions between July 2019 to January 2020 discussing the _Loi Avia _(Avia Law). The corpus was analysed using quali-quantitative methods. Overall, the study combines a top-down (global) and a bottom-up (local) analysis of the data, applying corpus semantic approaches (Lecolle et al. in Langages 210(2):35–54, 2018; Rastier in The Routledge handbook of semantics, Routledge, pp 507–522, 2015) to contextualize the analysis of the meta-discourse (Hyland in Meta-discourse: exploring interaction in writing, 1st ed. Bloomsbury Academic, Bloomsbury Collections, 2018. https://doi.org/10.5040/9781350063617 ). The analysis highlights the linguistic features revealing the power dynamics inherent within the discourse and counter-discourse of the dominant and opposition political parties respectively. (shrink)

Mondialisation oblige, il existe aujourd'hui un développement sans précédent des échanges de données à l'intérieur de l'Europe et hors de l'Union. Par ailleurs, les données personnelles sont devenues un élément important du patrimoine immatériel des entreprises - petites ou grandes - et un élément de leur développement durable. Or il n'existe pas de définition juridique précise de la notion de flux. Les réglementations sont très disparates hors de l'Europe et, même au sein de l'Union, les différences résiduelles ne permettent pas (...) de traiter les flux avec une sécurité juridique maximale. Sont proposées ici quelques pistes de réflexion sur l'évolution possible du droit des données personnelles face à cette mondialisation, notamment: - La nécessité d'une graduation d'application des règles, entre petites, moyennes et grandes entreprises. - La possibilité de permettre au CIL d'avoir un vrai pouvoir s'agissant des flux de données avec la mise en oeuvre d'un régime adapté.- L'établissement de règles plus claires et plus accessibles à toutes les entreprises y compris les PME et un allégement des procédures.Globalization has brought an unprecedented increase in exchanges of data both inside and outside the European Union. Personal data have become major intangible assets for companies, however small or large, and are instrumental in maintaining corporate sustainability. Yet there is no precise legal definition of what constitutes a data flow. Regulations vary widely outside the EU, and residual differences even within it mean that flows cannot be treated with maximum legal security. This paper suggests how laws on personal data could be remodelled to cope with globalization, in particular to: - Tailor regulations to the size of the company . - Give DPOs greater powers over data flows. - Establish clearer rules for all companies, including SMEs, and streamline procedures. (shrink)

Organized after an almost complete term of office, but the end of which was marked by the resurgence of the community-linked problems and by the departure of the Ministers of the Volksunie, the parliamentary elections of 24th November 1991 will remain characterized by the punishment inflicted by apart of the voters, not only on the majority's parties, but also on the traditional parties as a whole.The opposition of the dissatisfied voters did not show itself either in a reduced participation to (...) the vote, a rather normal phenomenon in a country where voting is compulsory, or in a rise of the blank and spoilt ba/lot papers. The 1991 figures are, in these respects, very similar to the average figures of the last thirty years.The opposition was first characterized by high variations in the choice of the voters, which dit not, however, exceed the size of the movements noticed at previous elections. The rate of external mobility, as computed by us, is ranked fifth among the 22 levels that have been counted since universal suffrage has been introduced in Belgium. In 1991, this rate was the highest in Brussels, which is traditional, but it was also considerably higher in Flanders than in the Walloon Region, which quite seldom happens.Then, the opposition found expression in a setback for the Jour ruling parties.This set back amounted to about 8% and even 10% if account is taken of the Volksunie which was part of the Government until the very last weeks before the dissolution of the Houses of Parliament. Such a setback for an outgoing majority is not exceptional; a more unusual phenomenon lies in the f act that this decline was not profitable, on the whole, to the third traditional "family", i.e. the Liberals. As a result of this simultaneous setback for the three traditional families, these total only about 70% of the valid votes, which is the worst result of the whole Belgian electoral history.The political formations that are progressing are the Ecologists, on the one hand, and the far-right lists, on the other hand. Ecolo improves its results considerably in the Walloon Region and in Brussels, without however reaching the level obtained at the 1989 European elections, while Agalev only registers a slight progress.On the contrary, the winner of the elections in the Flemish Region, is unquestionablythe Vlaams Blok, as well as the "Rossem" lists that draw some 5% of the angry voters.If the far-left trend has almost disappeared from the Belgian political scene, the far-right parties, on the contrary, are making a breakthrough on it. The current made up by the Vlaams Blok and the openly far-right lists wins a bit less than 8% of the votes in the whole country. It is likely, however, that those who voted for the Vlaams Blok do not all adhere to the far-right ideas, but that some of them are attracted by the Flemish autonomist stands. The real electoral power of the far-right parties can then be assessed at 6 to 7%, which is much more than in 1987, hut does not make a record in comparison with other European countries.The votes of opponents without any clear political orientation, the bulk of which is won by the "Rossem" lists, amount to some 3%, which is new for Belgium.In a country where voting is optional, many of these voters would probably have stayed at home.This being so, and as f ar as these concepts still remain meaningful, the Belgian electoral pendulum shifted some 5% towards the right, at the expense of the left for more than 3% and the centre for a bit less than 2%.As far as the Parliament is concerned, the situation is clear in the Walloon Region and in the French-speaking Community where the Socialist Party, by far the most important party, is almost inevitable. It is however much more vague on the Flemish side, where the CVP's setback and the dispersion of the polical farces make several types of coalitions possible. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits by Rocco PezzimentiAdam CarringtonPEZZIMENTI, Rocco. The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits. Herefordshire, U.K.: Gracewing, 2021. 207 pp. Paper, $22.00Rocco Pezzimenti's The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits is an ambitious book. A professor at LUMSA, Rome, he seeks to consider anew the (...) nature, structure, and purposes of democracy as well as the society in which this form of government best operates. He sees this task as needed because, he argues, contemporary democracies face new challenges that threaten their legitimacy and their capacity to fulfill their just and needed purposes. He notes that democracies are not "infallible," either morally or in their ability to maintain themselves, and thus need conscious understanding and prudent maintenance.The subtitle establishes the three main themes by which he diagnoses and addresses democracy's trials. Pezzimenti orders his argument most through the lens of limits. While present in all spheres and regimes, popular government in particular partakes of limitation, since "mutual limitation... is the basis of our democracies." Limits for Pezzimenti stem from distinct elements of a society competing for finite power ordered toward action. Many of our political and social problems, both past and present, stem from denying limitations or misordering their interactions. The presentism that tempts democracy must be tempered by the limits the past places on it. Institutions are one helpful means for this interaction, which helps guard against a "utopianism which wants to solve everything immediately, deceiving itself that it can perform miracles." Law itself involves limits, placing boundaries on the action of private persons and public entities. So does pluralism and "polyarchy," whereby we recognize the limits particular persons and communities place on politics' universalism as well as how politics restrains these other elements from descending into intolerant, selfish particularity. Important to this point is Pezzimenti's discussion of sovereignty, which must not be reduced to a mere question of who rules and where but to the question of rightly pursuing a common good respectful of individual rights. True freedom inheres in the proper cohering of these elements.Pezzimenti turns to the distribution of powers within a community as part of the discussion of limits. He argues that "the traditional tripartition, theorized by Polybius and on to Montesquieu, today appears certainly insufficient." To define all political power as legislative, executive, and judicial, then to distribute them among competing institutions, does not fully account for the contemporary political landscape. Moreover, those [End Page 361] "classic" powers themselves need to be rethought to meet today's concerns. Legislative power must account for claims that its representative systems either are oligarchic in practice or lead to crass populism, and that they fail to account for group identities as opposed to class ones. The executive must evolve in pursuit of a better "efficiency and efficacy"—including speed of response to problems—that requires a better relationship with the modern bureaucracy, which he describes as "the other face of the executive." The judicial power must focus on a renewed impartiality, especially in relation to the additional powers Pezzimenti thinks need to be named and then tamed. The new powers that he says we must recognize include the press, mass media, technology, and more. Here, Pezzimenti categorizes as powers the functions of government (making, enforcing, and adjudication of the law) alongside avenues or means for exercising political influence, if not outright control. These other forces have distorted democracy's needed limits partly because law and custom have not adequately accounted for their evolving role in power.These issues lead to the last challenge, that of representation. The problem of representation threatens democracy's legitimacy, since this form of government is grounded more than any other in the idea that "power must be the expression of the community." Yet even here the issue of limits orders the discussion. The unaccounted-for new powers described above remove too many limitations either on crass populism or encroaching rule of elites. The former can abuse individual rights, which he says "are not negotiable," based on oppressive whims... (shrink)

The essential nature of legislative power is to make the laws; that of executive power is to execute those law. The difference between the two is both substantial and significant; it is the difference between the rule of arbitrary power and the rule of law. This paper will seek to trace the genesis of an independent judicial power, in both theory and practice, through an examination of sections of The Constitutions of Clarendon, The Assize of (...) Clarendon, Hobbes’ Leviathan, Locke’s Second Treatise, Montesquieu’s Spirit of the Laws, as well as The Federalist Papers. Moreover, it will seek to establish its executive nature and to explain why it is so often misunderstood to be akin to the legislative power. (shrink)

This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in a democracy; and to explore (...) the implications that this has for women’s equality and equal human rights. This is a particularly pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable, for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the claim that this is one way of recognizing people’s rights and freedoms in a new democracy. (shrink)

ABSTRACTThe goal of this paper is to locate indirect legislation within Bentham’s art of legislation, and to distinguish it, as far as possible, from direct legislation. Along the way, some parallels are drawn between indirect legislation on the one hand, and the Nudge theory of Thaler and Sunstein on the other. It will be argued that many expedients categorized by Bentham as indirect legislation are simultaneously exercises of direct legislation. Another set of indirect expedients act on knowledge, and involve efforts (...) to eliminate asymmetries of information between potential offender and potential victim by providing official standards and disseminating a plethora of factual information. Other forms of indirect legislation threaten the coherence of Bentham’s theory of law, firstly by regarding all government actions as exercises in legislation, and secondly by turning the formers of public opinion into legislators. Insofar as some forms of indirect legislation operate by sleight of hand, they conflict with Bentham’s commitment to transparency in the exercise of public power, reflecting a tension between reality and appearance which runs through his thought. (shrink)

It is a distinctive feature of the global political order that democracy is no longer confined to nation-states, characterized by extensive and overlapping constituencies. It is important to think of the significance of these developments for individuals’ self-determination, which may be undermined in different ways. Here it is argued that democracy must serve to delegate power to complex units of decision making which favour self-determination. Contestability is part of this form of self-determination, allowing forms of politics to emerge based (...) on the democratic rights and powers of self-determining, non-dominated citizens. (shrink)