Behind the pendulum-like regulatory swings between interventionism and laissezpasser that are nothing but the results of changing contexts are the legal principles as their denominators and connectors. Legal principles guide explanations and give paths that a decision maker must not circumvent. In the enhanced dynamic environment that is based more on risk and prediction than solely ex post adaptation they cannot cope with the more numerous information and communication channels. Principles can be more fully embraced with the help (...) of more systematically-elaborated reality. Without clear steps needed for the formation of principles talks about the regulatory impact assessment, risk management, evidence-based approach and other regulatory notions are only a stuff for filling the paper lines than the real tools for the management of reality. (shrink)

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal of (...) principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and (...) also whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no such (...) things as principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

Increased knowledge of the gene–disease associations contributing to common cancer development raises the prospect of population stratification by genotype and other risk factors. Individual risk assessments could be used to target interventions such as screening, treatment and health education. Genotyping neonates, infants or young children as part of a systematic programme would improve coverage and uptake, and facilitate a screening package that maximises potential benefits and minimises harms including overdiagnosis. This paper explores the potential justifications and risks of genotyping children (...) for genetic variants associated with common cancer development within a personalised screening programme. It identifies the ethical and legal principles that might guide population genotyping where the predictive value of the testing is modest and associated risks might arise in the future, and considers the standards required by population screening programme validity measures . These are distinguished from the normative principles underpinning predictive genetic testing of children for adult-onset diseases—namely, to make best-interests judgements and to preserve autonomy. While the case for population-based genotyping of neonates or young children has not yet been made, the justifications for this approach are likely to become increasingly compelling. A modified evaluative and normative framework should be developed, capturing elements from individualistic and population-based approaches. This should emphasise proper communication and genuine parental consent or informed choice, while recognising the challenges associated with making unsolicited approaches to an asymptomatic group. Such a framework would be strengthened by complementary empirical research. (shrink)

In The Concept of Law, H. L. A. Hart propounds three central theses about the nature of law: a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition ; there are no necessary substantive moral constraints on the content of law ; and judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide hard (...) cases by creating new law and not by applying existing law . ;Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In "The Model of Rules I," Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, "a sense of appropriateness developed in the profession and the public over time." Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false. ;In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses. (shrink)

Law is a system of legal rules and legal principles. The distinction between them is a relative one. Always such definite major and minor premises are to be formed that the case can be subsumed under the rule and a conclusion, which includes the decision, can be drawn. This applies to legal principles that are operationalised by legal rules as well as to statutory forms of legal rules, which are often open as to their meaning (...) and/or contain definitions that comprise elements of principles. The basic characteristic of legal principles is that they are value measures directing the definition of legal rules as to their contents, the understanding of the rules, and the manner of their application. Legal principles aim at a goal, have weight, and define the scope of the meaning within which the legal rules move. The operationalisation of legal principles is the _ratio decidendi_ that the court has to achieve in order to be able to decide in a concrete case. Legal principles live through the rules that are the reasons for the decision in a concrete case. New cases can be solved by a new operationalisation of legal principles or by analogous application of precedents if the new cases, in their essential elements, correspond to cases that have already been decided. (shrink)

The installation in a society of ad hoc and contradictory legal policies over a foundation of equal liberty and justice under the rule of law results in social disorder. When these policies reflect economic interests, A feudal-Like form of economic determinism begins to close in. This in turn breeds inequalities, Frustrated expectations, Political favoritism and authoritarianism. Further, The 'success' of such policies in terms of visible changes in the social order cannot in principle be known. The paper demonstrates (...) these social disorders in terms of a current american mandate called 'reverse discrimination' which coerces industries and universities to favor and promote the economic and educational interests of some persons over others. (shrink)

The article deals with a discussion of the concept and implementation of the procedure within a reasonable time as a legal principle. The main purpose of the article is to reveal the content and functioning of this principle. The author presents new insights into this principle. From time to time this legal ground evolves into new forms or the criteria, on which it depends, changes; therefore, such issues have to be taken as the basis for (...) evaluating this principle. The following conclusion is drawn in the article: the effect of the principle of the procedure within a reasonable time is not only tied to the obvious suspicion or indictment, but also to any reasonable assumption about the probable prosecution due to various actions carried out by criminal procedure officers under the Code of Criminal Procedure. After summing up the arguments, the author concludes that it is important to estimate the procedural interest of the suspect, defendant or sentenced person. (shrink)

The article “Prevention of corruption in public procurement: importance of general legal principles” examines the importance of general legal principles in the sphere of public purchases. The purpose of the work is to analyse the information on possible methods of prevention of and fight against corruption. The main result of the work is the conclusion that strict adherence to the general legal principles is one of the corruption-reducing factors. While combating corruption in the field of public procurement, (...) general legal principles should not be divided into primary and secondary principles, because they are all equally important and complement each other. Audit of the normative acts regulating public procurement shall be performed in the Member States of the European Union; positivisation of the following principles will effectively prevent manifestations of corruption in the area of public procurement: the principle of responsibility; principle of permanent composition of the procurement commission; the principle of in dubio pro reo; the principle of compensation; the principle of control; the principle of objectivity; the principle of completing the procurement procedure within a reasonable time period. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Beginning in the 20s of the last century, historical research into Eiximenis's life and writings has thrown into relief his contribution to the language and political ideas of the kingdoms and towns of the Catalan-Aragonese Crown. Of fundamental importance has been the work of medievalists from North America, and in particular that of Canadian scholars during the last decades of the twentieth century.More recently, a number of studies have (...) underlined the decisive contribution of Eiximenis – a representative of a European textual tradition among friars of the Minor Observance that extended from Oxford to Florence – to the establishment of a system of ethical values for the economic sphere and for trading practices that continued to be developed by members of the Franciscan Order throughout the high middle ages and early modern period.As a follow-up to these studies, I believe that a program of textual analysis and systematic investigation of Eximenis's work could provide further information about the range and significance of his political thinking, based as it was on applying, in typically Franciscan fashion, experimental observation to gain an understanding of the nature both of the societas and of the market, the latter being thought of as a defining expression of civic institutions in Western Europe. This same experimental approach can be found in Franciscan thinking from the catalan-aragonese realm not only in the work of Arnau de Vilanova and Ramon Llull, but also in that of Pere Tomas and Anselm Turmeda, two figures fundamental to the preparation and political engagement of the Friar of Girona.1. The concept of contractIn Eiximenian texts, the communitarian dimension is defined as one that is of necessity based on contract. It is expounded in the long opening section of the Dotzè del Crestià, where Eiximenis outlines the political value of the civitas, as well as setting out the elements that constitute civic life.Borrowing from Aristotle's discussion in the First Book of the Politics , the Franciscan friar strongly affirms that one of the principal reasons behind the civitas is the "necessitat de contractes," the need for contracts. Going far beyond the highly qualified analysis of money and coinage set out by the Greek philosopher, Eiximenis here maintains that the aims of the community is the profit that the citizenry realises by means of different forms of exchange, through buying and selling, through contracts, and through trading. Moreover, that the binding nature of trading-contracts is a matter of concern not of the city in the narrow sense, but of each and every kind of human social organization.Even before contract-law, or, better said, conventional or foral procedure, Eiximenis views the idea of the contract as an essential part of the ethical and organizational principles of living as a community, the essence of the civitas. And it is of great significance that when he is discussing the value and function of money, Eiximenis chooses to call the sorts of exchange that to-day we term economic or financial les civils conmutacions, or exchanges between citizens.These lexical hints allow us to capture the strength of meaning and value, the ethical perspective by which the Gerundense defines the inextricable union of the market and civic society. But it is not only an analytical perspective, significant as that is, that unites market and civic ethics; we are presented with a value judgment of contract and economic exchange as elements that determine the very idea of civilitas.The "bona civilitas," an expression that can be roughly translated as "good civic culture," is in fact founded on a concept of economic ethics that has as its distinguishing feature the logic of profitable exchange, of the distribution of that profit, of contractualization, and of the circulation of goods and money. It is characterised by redefining the anti-value of avaritia as a real.. (shrink)

Artificial Intelligence (AI) is set to bring changes to legal systems. These technologies may have positive practical implications when it comes to access, efficiency, and accuracy in Justice. However, there are still many uncertainties and challenges associated with the implementation of AI in the legal space. In this research, we surveyed Judges on critical challenges related to the Judging Profession in the AI paradigm; Automated Adjudication; and Legal Principles. Our results suggest that (i) Judges are hesitant about (...) changes in their profession. They signal the need for adequate training that fosters legal literacy in AI, but are less open to changes in legal writing or their social and institutional role; (ii) Judges believe higher levels of automation only lead to fair outcomes if used in earlier phases of adjudication; (iii) Judges believe and are concerned about AI leading to Techno-Legal Positivism; and (iv) Judges consider that Legal AI technologies may have a positive impact in some legal principles, as long as everyone has equal access to those technologies and cybersecurity and judge on the loop safeguards are in place; and (v) Judges are strongly concerned about the de-humanization of Justice. They consider that assessing evidence, analyzing arguments, and deciding on a legal case should be inherently human. By surveying these practitioners, we aim to foster a responsible, inclusive, and transparent innovation in Justice. (shrink)

No entendimento de Habermas, "direito", na expressão "direitos humanos", é um conceito jurídico, donde direitos humanos, para ele, serem direitos jurídicos, normas legais declaradas em atos de fundações do Estado ou anunciadas em convenções do direito internacional e/ou constituições estatais. Ao conceber assim os direitos e tematizar os direitos humanos numa abordagem tríplice (focando-os entre moral, direito e política), ele fornece diferentes definições teóricas dos direitos humanos. O texto apresenta uma exposição sistemática dessas definições e focaliza os diferentes problemas que (...) motivaram Habermas a alterar e ampliar suas concepções de direitos humanos. In the understanding of Habermas, "right" in the phrase "human rights" is a legal concept, where human rights are legal rights, i.e., legal norms declared in acts of foundations of the State or announced conventions of international law and/or State constitutions. By conceiving of rights in this way and by treating human rights in a threefold approach (placing them between morals, law and politics), he presents different theoretical definitions of human rights. This paper presents a systematic exposition of these definitions, and focuses on the different problems that motivated Habermas to change and expand his conceptions of human rights. (shrink)

Advances in neuroscience and other disciplines are producing large-scale brain data consisting of datasets from multiple organisms, disciplines, and jurisdictions in different formats. However, due to the lack of an international data governance framework brain data is currently being produced under various contextual ethical and legal principles which may influence key stakeholders involved in the generation, collection, processing and sharing of brain data thereby raising ethical and legal challenges. In addition, despite the demand for a brain data governance (...) framework that accounts for culture, there is a gap in empirical research and actions to understand how key stakeholders around the world view these issues using neuroscientists who are affected by these ethical and legal principles. Therefore, using the research question how do ethical and legal principles influence data governance in neuroscience? we attempt to understand the perceptions of key actors on the principles, issues and concerns that can arise from brain data research. We carried out interviews with 21 leading international neuroscientists. The analytical insights revealed key ethical and legal principles, areas of convergence, visibility, and the contextual issues and concerns that arise in brain data research around these principles. These issues and concerns circulate around intimately connected areas which include ethics, human rights, regulations, policies and guidelines, and participatory governance. Also, key contextual insights around animal research and ethics were identified. The research identifies key principles, issues, and concerns that need to be addressed in advancing the development of a framework for global brain data governance. By presenting contextual insights from neuroscientists across regions, the study contributes to informing discussions and shaping policies aimed at promoting responsible and ethical practices in brain data research. The research answers the call for a cross cultural study of global brain data governance and the results of the study will assist in understanding the issues and concerns that arise in brain data governance. (shrink)

The degree to which the early dharma literature was an extrapolation from the earlier ritual codes can be seen from a number of shared features of form and content. One of these that has not received more than passing notice is the fact that the Dharmaśāstric principle of regarding customary norms as a valid basis of dharma, both in general and in limited spheres, has its origins in ritual rules in the śrautasūtras and gṛhyasūtras. Passages from the Baudhāyanaśrautasūtra and (...) numerous gṛhyasūtras show that already in these rulebooks established practices of particular social groups were accepted as a valid authority in certain contexts where explicit textual warrant was lacking, and that a further distinction was there made between the general norms of experts and the valid particular norms of locality or social group. (shrink)

동양의 법제와 법사상에서 중요한 개념인 情·理·法에 대한 선행연구들이 적지 않았다. 하지만 조선시대 민사판결인 결송입안(決訟立案)을 활용하여 情·理·法의 실제 적용례를 분석한 바는 없었다. 본고에서는 조선시대 재판사례를 근거로 들어 情·理·法의 관계를 규명하려 하였다. 그리고 전통법에서도 서양의 법원리주의를 인정할 수 있는지 검토해 보았다. 한국 전통법에서 情·理·法의 관계는 다음 명제로 정리할 수 있다. ‘法이라는 것은 理로부터 다스려지는 것이고, 理는 情에서 나오는 것이다. 재판관은 이것 이외 무슨 다른 말을 하겠는가?(法以理折 理由情出 爲官守者 於復此乎 更有何說是乙喩)’ 중국의 情·理·法과 조선의 情·理·法은 상당히 유사한 논증구조를 가지고 있었지만, 조선의 情·理·法은 분묘에 관한 (...) 소송(山訟)에서 중국법과 다른 특징을 가지고 있었다. 조선시대 분묘소송은 情·理를 원용하여 法의 흠결을 보충하였다. ≪經國大典≫ 및 ≪續大典≫의 분묘에 관한 ‘法’조문은 서로 모순·충돌하고 있었다. 그래서 재판관은 분묘소송에서 ‘情·理’에 해당하는 ‘앉아서도 서서도 안 보임(坐立具不現)’의 원리를 원용하여 재판하였다. 유명한 법철학자 로날드 드워킨(Ronald Dworkin)은 법원리주의를 주창하였는데, 그는 법체계를 확정적인 법규범(legal rules)과 법원리규범(Principle)으로 구성된 체계라는 주장을 하였다. 드워킨의 법원리주의와 情·理·法의 논증구조는 상당히 유사하다. 그렇지만 동양의 전통법에서 서양의 법철학에서 논의하는 법원리주의를 인정할 수 있는가라는 질문을 한다면, 이에 대해 ‘반드시 그렇게 볼 수는 없다’고 답할 수밖에 없다. 동양법과 서양법의 법문화가 다르기 때문이다. 또한 ‘法’이라는 글자와 ‘Law’의 의미가 다르며, ‘情·理’와 ‘Morality’, ‘Equity’, ‘Principle’ 등의 용어는 대비해 볼 수 있는 용어이지만, 이들이 개념필수적으로 동일한 용어는 아니기 때문이다. (shrink)

The principle of bivalence is the assertion that every statement is either true or else false. Its legal analog, however, must be formulated relative to particular legal systems and in terms of validity rather than truth. It asserts that every statement of law that can be formulated in the vocabulary of a given legal system is valid or else invalid in that system. A line of New York cases is traced, beginning with Thomas v. Winchester . (...) This case, which involved a poison mislabeled as a medicine, established an exception to the rule that a manufacturer or supplier is never liable for negligence to a remote purchaser. The court made an exception because a poison is an “imminently dangerous” thing. How far may this exception be applied to other fact‐situations? Some subsequent cases are examined, and it is considered whether there is no correct answer in these instances and, more dramatically, whether more than one correct answer is tenable. In either event the legal analog of bivalence would seem to fail. (shrink)

이 연구의 궁극의 목적은 튼실한 민주와 정상적인 법치의 활착이다. 그 작은 목표로 한국 법체계의 법원리 법원칙을 표상할 수 있는 상징적 표제어를 발굴 정초하려는 것이다. 한국 법문화에서 이 표제어는 현재 공백이라고 말해도 과언이 아니다. 그것은 한국 법치주의의 역사문화적 정당성이 결여되어 있다는 반증이기도 하다. 서구형 민주와 법치가 뿌리내리지 못하고, 동양형 민주와 법치 역시 시의(時宜)에 맞게 창신(創新)해 내지 못하고 있기 때문이다. 이 글은 분석대상을 한두 가지로 국한해서 세밀하게 서술하지 않는다. 한국 법체계 전체 국면의 큰 흐름을 가능한 확보하려는 취지에서 소략하게 논증하기 때문에 시론적 작업이라 (...) 명명한 것이다. 그렇다면 한국 법체계의 법원리를 추출하고 표상화하는 실질적 기준은 어떻게 설정할 것인가? 조선시대 법체계인 조선경국전(朝鮮經國典)의 정보위(正寶位), 경국대전(經國大典), 다산(茶山)의 형전(刑典), 그리고 근대의 법체계인 임정헌법, 제헌헌법, 대법원 판결례를 아주 제한적으로 분석 우리 헌정질서에 담겨진 법가치를 재확인 법원리로 표상할 수 있는 표제어를 부분적으로 입안 정초하려는 것이다. 그 큰 흐름의 하나는 여민(與民)의 법가치와 인민주권의 법원리이며, 그 둘은 여민의 법가치와 경제균평의 법원리이다. 조선경국전 정보위(正寶位)의 균방국(均邦國), 경국대전의 경제질서, 다산의 균평(均平)의 법(정치)원리, 그리고 임정헌법의 이익균등 제헌헌법의 이익균점, 지금의 경제민주에 이르기까지 한국 법체계의 법원리로서 면면히 이어지는 법원칙이며 법의 정신이다. 그러니까 여기서 주목할 점은 이러한 법원리는 근대 법체계에서 국민주권의 법원리, 그리고 활사개공(活私開公)의 법원리, 경제민주의 법원리와 큰 틀에서 상응 상통하게 된다는 사실이다. 대법원 판결례에서 추론하여 표상화 할 수 있는 법원리 역시 넓은 의미에서 활사개공(活私開公)의 법원리이며, 활문개작, 활문개창의 법(해석)원리이다. 한편 오피니언 리더와 시민사회 단체들의 정제된 담론에서 활사개공의 법원리를 다시 확인하게 된다. 이러한 가설적 법원리 입안은 한국사회의 규범현실을 진맥하고 소통을 촉진하며, 소박하게나마 한국사회의 기존의 법이론 정의론 전개를 다시 성찰하는 계기가 될 것이다. 더 나아가 한국사회의 법의 철학을 전개할 수 있는 모멘텀으로 작용할 것이다. 위와 같은 총체적 과정에서 한국 법체계의 법공동체 공론의 장에서 수긍할 수 있는 법원리 후보군이 결정되면 그 상징적 표제어를 최종적으로 입론하게 될 것이다. (shrink)

An essential aim of this study is to present principles of the legal interpretation of the term “building structure” for the needs of the imposition of a real estate tax. The analysis of both administrative courts’ judgments and the subject literature indicates lack of consistency in the scope of this term’s meaning. In my opinion, interpretative discrepancies are caused by incorrect legal interpretation of the legal definition. It should be noticed that numerous controversies connected with the (...) class='Hi'>legal interpretation of the term building structure are connected with considerable tax burden of this type of building objects. Taxpayers, for obvious reasons, are therefore “interested” in not finding the objects owned by them to be building structures in the meaning of the Tax Law, or possibly in finding only those objects’ specified parts to be building structures. It is easily apparent particularly in the case of objects of complex structures. On the other hand, however, for many municipalities in Poland, income from building structures’ taxation creates municipal budgets. This way the practice of applying local tax law encounters numerous disputes between taxpayers and self-government tax authorities. (shrink)

While the 2010 EPSRC principles for robotics state a set of 5 rules of what ‘should’ be done, I argue they should differentiate between legal obligations and ethical demands. Only if we make this difference can we state clearly what the legal obligations already are, and what additional ethical demands we want to make. I provide suggestions how to revise the rules in this light and how to make them more structured.

This paper considers a guardianship model for the legal representation of future generations. According to this model, national and international courts should be given the competence to appoint guardians for future generations, if agents who care about the welfare of posterity apply for the creation of a guardianship in relation to a dispute that can be resolved by the application of law. This reform would grant guardians of future people legal standing or locus standi before courts, that is, (...) the right to bring an action before a court of law for adjudication. Although the guardianship model faces several difficult theoretical and practical problems pertaining to the representation of different near and distant future generations, it is argued that this model – and certain other legal norms intended to protect future basic needs – can be justified on the basis of the principle of liberty. (shrink)

In common law jurisdictions, legal professionals cite facts and legal principles from precedent cases to support their arguments before the court for their intended outcome in a current case. This practice stems from the doctrine of stare decisis, where cases that have similar facts should receive similar decisions with respect to the principles. It is essential for legal professionals to identify such facts and principles in precedent cases, though this is a highly time intensive task. In this (...) paper, we present studies that demonstrate that human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles. We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision and recall figures of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall κ\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$\kappa$$\end{document} of 0.72 with the human-annotated gold standard. (shrink)

Artificial intelligence (AI) will drastically change the healthcare system. Radiology is one speciality that is most affected as AI algorithms are increasingly used in diagnostic imaging. AI‐enhanced health technologies will, inter alia, increase workflow efficiency, improve diagnostic accuracy, reduce healthcare‐related costs, and help alleviate medical personnel shortages in under‐resourced settings. However, the development of AI‐enhanced technologies in healthcare is fraught with legal, ethical, and human rights concerns. Currently, the use of AI in South African healthcare is not governed by (...) sui generis legislation or ethical guidance focused exclusively and specifically on AI, although various provisions and principles from law and ethics find application. This article outlines these normative principles and explains their relationship with the extant legal obligations and regulatory framework as applied to the use of AI in radiology services in South Africa. The article concludes with three key recommendations for radiology practitioners using AI in South Africa. These are the need for: vigilant monitoring of AI use in practice, reforms to the liability framework, and appropriate guidance from local regulators and the Health Professions Council of South Africa on the ethical use of AI. (shrink)

The book comprises contemporary legal theory pertaining to Democratic States based on the Rule of Law from the perspective of general principles of law. It explains in detail, theoretically and based on the specific case law, the phenomenon of general principles of law - as a source of law and directly applicable legal norms. It is a work of legal theory, legal philosophy, and legal method, but it will also assist scholars and practitioners in the (...) transitional justice field as it shows how this theory of general principles of law has assisted Latvia to move away from the socialist legal tradition. (shrink)

Alan Gewirth’s claim that agents contradict that they are agents if they do not accept that the principle of generic consistency (PGC) is the supreme principle of practical rationality has been greeted with widespread scepticism. The aim of this article is not to defend this claim but to show that if the first and least controversial of the three stages of Gewirth’s argument for the PGC is sound, then agents must interpret and give effect to human rights in (...) ways consistent with the PGC, or deny that human beings are equal in dignity and rights (which idea defines human rights) or that they are agents (and hence subject to any rules at all). Implications for the interpretation of the international legal system of human rights inspired by the Universal Declaration of Human Rights 1948 are sketched. (shrink)

This paper aims to introduce, in the context of Latin America, the theoretical epistemic discussion regarding the theme of the ‘common’ as a political principle which substantiates instituting and autonomous processes of government, control and community regulation. The work seeks to relate a democratic scenario of the ‘common’ with the discourses of pluralist and decolonial normativity, in a way that would guarantee not only horizontal communal self-management, but also a legitimate ordering of forms of life, founded on common interest, (...) social relations and interconnected structures. For this purpose the instrument of critical-socio-legal analysis is applied at the intersections with the ‘participative-communitary’ type of legal pluralism. Our proposal is to combine the contemporary meaning of the ‘common’, its relation to the Latin American principles of ‘buen vivir’ (living well) and ‘interculturalidade’ (interculturality), as well as the instituting practice of the ‘common’, that engenders a normativity built ‘from below’, which is in opposition to the traditional positivist and state legal system imposed through colonization in Latin America. Such achievements that, although formalized, are not being successful against institutional ruptures, have ‘cloistered’ the practices of the ‘common’ and made the existence of legal pluralism invisible. (shrink)

It is argued that accepting that there are human rights, or that there are categorically binding requirements of any kind on action, logically requires accepting the PGC (Principle of Generic Consistency) as the supreme criterion of practical reasonableness.Consequently, all legal systems that recognise human rights (hence, the English legal system), all who view law as a matter of obligation, and all who consider that there are categorically binding requirements on action, must take the PGC to be a (...) necessary criterion of legal validity. Conventions on human rights must, as conventions on human rights, be interpreted to conform with the PGC. (shrink)

The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, (...) and kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present (...) article responds to their defenses of Raz's Exclusive Legal Positivism. (shrink)

This thesis demonstrates that by redefining the notion of nationhood and by treating nations and national minorities equally with respect to self-determination, it is possible to formulate basic principles of the international legal system, which would promote territorial integrity and stability of multinational states better than the existing system. I demonstrate that theories dealing with self-determination based solely on human rights or cases of secession address the problem with inadequate tools. I also show that minority-rights approaches do not accommodate (...) self-determination claims of national groups properly. ;I offer a new idea of nationhood as a political culture of self-determination with which people self-identify. It includes beliefs about co-nationals' mutual membership in a political community, which is perceived by them as having a self-determining power. Definitions of nationhood which use the notion of culture, but not political culture, are both too inclusive---they fail to distinguish between national and ethnic groups, and too exclusive---they overlook multicultural nations. ;Contested secession has received much attention in recent scholarship. Since, however, contested secession is based upon the disagreement of two or more national groups concerning their self-determination within particular boundaries, I consider secession within the scope of a systematic approach to the regulation of relations among national groups. I propose that international legal principles should be based upon the recognition of states and national groups as the two basic elements of the international system, and the equal recognition of nations as political cultures of self-determination. I interpret self-determination as a claim to equality within the boundaries a multinational state, and formulate a criterion of minimal justice for states. It requires that states respect equality of self-determination of national groups on their territory. National groups can secede from multinational states either by mutual agreement, or if their they are persistently denied a status with respect to self-determination equal to that of other national groups. (shrink)

Applied naturalism -- Natural rights -- Applied positivism -- A concept of interpretive methodology -- Application of principles of public policy -- Interpretative sources of law -- The formulation of legal principles -- The formulation and application of principles of interpretative construction -- The formulation and application of principles of constructive interpretation -- Application of appropriate equitable principles -- The formulation and application of determinant legal tests and criteria by the courts -- The practical adoption of the jurisprudential (...) process of conceptualisation -- Legal factors and formulae determining correct motion procedures -- The usefulness of templates and principles in maintaining integrity of law in legal practice. (shrink)

Through the centuries, women from all over the world remain vulnerable to their social status. In some developed countries the situation has improved, but there are many countries where it is still unbearable. United Nations Educational, Scientific and Cultural Organization aims to assist in this regard by addressing ethical issues pertaining to medicine, life sciences and related technologies as applied to human beings with consideration of women's social, legal and environmental dimensions. Yet pastoral counsellors on ground level are confronted (...) with the need for assistance to women who suffer because of this exploitation. Therefore, the aim of this article is to focus on biblical principles that can serve as anchors to guide women regarding their human vulnerability and personal integrity when they experience suffering and hardship. The challenge facing the pastoral counsellor is to guide women to accept the reality of their situation within a certain framework, to adequately deal with this and, in spite of overwhelming emotions, continue to grow in personal integrity and healing. (shrink)

One of the most fundamental questions in general jurisprudence concerns what makes it the case that the law has the content that it does. It is the job of theories of legal content to provide answers. This article offers a novel positivist theory of legal content. According to the theory it calls “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content (...) differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing on concrete examples from American statutory and constitutional law, the article shows how the version of positivism that it introduces and defends betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled. The article also explains why the revisions it advances matter, legally as well as philosophically. (shrink)

Big data and Machine learning Techniques are reshaping the way in which food safety risk assessment is conducted. The ongoing ‘datafication’ of food safety risk assessment activities and the progressive deployment of probabilistic models in their practices requires a discussion on the advantages and disadvantages of these advances. In particular, the low level of trust in EU food safety risk assessment framework highlighted in 2019 by an EU-funded survey could be exacerbated by novel methods of analysis. The variety of processed (...) data raises unique questions regarding the interplay of multiple regulatory systems alongside food safety legislation. Provisions aiming to preserve the confidentiality of data and protect personal information are juxtaposed to norms prescribing the public disclosure of scientific information. This research is intended to provide guidance for data governance and data ownership issues that unfold from the ongoing transformation of the technical and legal domains of food safety risk assessment. Following the reconstruction of technological advances in data collection and analysis and the description of recent amendments to food safety legislation, emerging concerns are discussed in light of the individual, collective and social implications of the deployment of cutting-edge Big Data collection and analysis techniques. Then, a set of principle-based recommendations is proposed by adapting high-level principles enshrined in institutional documents about Artificial Intelligence to the realm of food safety risk assessment. The proposed set of recommendations adopts Safety, Accountability, Fairness, Explainability, Transparency as core principles (SAFETY), whereas Privacy and data protection are used as a meta-principle. (shrink)

Responses to the COVID-19 pandemic have been widely criticized for being too delayed and indecisive. As a result, the precautionary principle has been endorsed, applauded, and proposed to guide future responses to global public health emergencies. Drawing from controversial issues in response to COVID-19, especially in Vietnam, this paper critically discusses some key ethical and legal issues of employing the precautionary principle in public health emergencies. Engaging with discussions concerning this principle, especially in environmental law where (...) the precautionary principle first appeared as a guiding principle with objective content(s), this paper formulates the precautionary principle as ‘in dubio pro salus’, which is about advising, justifying and demanding states to proactively prepare for scenarios arising out of any public health emergency. It distinguishes the precautionary principle into moderate and hard versions. A moderate version largely takes a holistic approach and fulfils a series of criteria specified in this paper, while a hard version either permits restrictive measures to be deployed primarily on a hypothetic basis or expresses an instrumental mentality. The hard version should be rejected because of the ethical and legal problems it raises, including risk-risk tradeoffs, internal paradoxes, unjustified causing of fear and unreasonable presupposition. Ultimately, this paper defends the moderate version. (shrink)