This paper analyses the role of a code of ethics for judges in connection to a contemporary definition of responsive ‘T-shaped’ judicial professionalism and the professional-ethical questions which can arise in judicial decision-making regarding politically and societally controversial issues. The paper’s case study focuses on climate-change related litigation in Dutch courts. First, a theoretical framework which conceptualises practical and ethical elements of T-shaped judicial professionalism as ‘virtuous judgecraft’, building on the work of Kritzer and Van Domselaar, (...) addresses the knowledge, skills, and ethical mindset that judges need for fulfilling their roles in relation to this notion of professionalism. Next, the paper analyses to what extent connections with guidelines of the Dutch Guide to Judicial Conduct (GJC), considered in light of the developed framework of virtuous judgecraft, can be recognised in the approaches of judges in the landmark Urgenda judgments. Based on this analysis, the paper presents conclusions regarding the value of the GJC for enhancing judicial performance and for explaining judgments, in particular those which involve complex societal issues, to parties and the general public. (shrink)

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah G l as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran (...) Hirschl turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the 'Atat rk card' and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down. (shrink)

The article aims to assess whether the procedural innovations introduced by the reform of the civil procedure law of the Republic of Lithuania have brought changes in judges’ behaviour, which the reform intended to achieve. The study analyses the driving reason behind the reform of the civil procedure law, its objectives, and the ways the five innovations brought about by the reform changed the behaviour of the judges. The analysis of the legal sources and the empirical study show that some (...) of the innovations introduced by the Civil Procedure Code have not yet been properly assimilated and that the code, which has been in force for twenty years, is still not fully operational and understood. (shrink)

Artificial intelligence (AI) technology has brought new opportunities and challenges to the judicial field, which dramatically improves judicial efficiency and may even change the judiciary's way. The concept of judicial justice in the information age has a natural affinity with artificial intelligence. As artificial intelligence continues to make breakthroughs in judicial data sorting and deep learning knowledge, judicial artificial intelligence has gradually become a reality. Artificial intelligence can conduct legal argumentation, interpret calculation results, human–computer collaboration, (...) and judicial judgment. At the same time, the development of artificial intelligence technology also has potential risks, such as algorithm black boxes, algorithm discrimination, etc., to help judges achieve judicial justice, the value of judicial justice should be pursued to the limit of its judicial application. Therefore, artificial intelligence justice should be constrained by social relations, legal rationality, and code operation. (shrink)

This article examines how international institutions serve to diffuse human rights norms and create judicial capacity building in post-conflict societies. Specifically, we examine how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative have influenced the reform of domestic courts in Bosnia and Herzegovina (BiH). We place these reforms within the broader debate over restructuring the complex system of government in BiH. Since 2005, domestic courts in BiH have had jurisdiction over the (...) following: (1) Cases which were initially under the jurisdiction of the domestic courts but remanded to the ICTY and recently returned to BiH. (2) Cases which originated at the ICTY and have been transferred to the State Court, and (3) new cases which originated and remained in the domestic court system. We find that while human rights norms have been incorporated into the new legal code, the diffusion of these human rights norms has been inadequate because of the lack of judicial capacity building. While some courts in the capital enjoy significant resources, the vast majority of cases will be tried at provincial courts which are under-funded and unable to prosecute the significant number of cases. Moreover, the government structure of BiH has had a decidedly negative impact on the prosecution of these cases. Ultimately, the rule of law requires consistency of approach and funding to protect human rights throughout the state. (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)

As a follow-up to Stephen Deakin's analysis on the ethics of mercy killing on the battlefield in this journal, this article proposes a moral justification for this type of action, as well as a judicial framework that could clarify what qualifies as such morally permissible action. Based upon contemporary cases, it argues that the current military codes of conduct are incoherent when it comes to the punishment of soldiers who commit mercy killings, and that the military codes of justice (...) should be amended accordingly. (shrink)

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from (...) popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power. (shrink)

This paper is the first to critically analyse how the newly enacted Chinese Civil Code addresses gender equality in the intersection of family and commercial contracting. It proposes ‘marriage transmitted debt’ (MTD) in China as a new concept as opposed to ‘sexually transmitted debt’ (STD) documented in English and Australian jurisprudence. MTD refers to the debt incurred by one spouse but transmitted to the other spouse due to the status of the marriage. Supported by empirical statistics, it shows that (...) while the statutory language of MTD regulation in China is neutral, wives are still disadvantaged. Although this has been partly addressed by shifting the onus of proof to creditors, the meaning of debt incurred for the daily life of a family or the joint life of the couple in the Code needs further judicial development. The Code is the beginning of a solution rather than the end to achieving gender equality in China. (shrink)

Both law and medicine rely on self-regulation and codes of professionalism to ensure duties are performed in a competent, ethical manner. Unlike physicians, however, judges are lawyers themselves, so judicial oversight is also self-regulation. As previous literature has highlighted, the hesitation to report a cognitively-compromised judge has resulted in an “opensecret” amongst lawyers who face numerous conflicts of interest.Through a case study involving a senior judge with severe cognitive impairment, this article considers the unique ethical dilemmas that cognitive specialists (...) may encounter when navigating duties to patient, society, and the medical profession, without clear legal guidance.Systemic self-regulatory inadequacies in the legal profession are addressed, as well as challenges that arise when trying to preserve the trust and dignity of an incapacitated patient who must fulfill special duties to society.Ultimately, because of their unique neurological expertise and impartial assessments, we submit that allowing cognitive specialists to submit their assessments to an internal judiciary board may act as an additional check and balance to ensure the fair and competent administration of justice. (shrink)

The main claim of this paper is the following: In a typical rational legal system, legal adjudication is necessarily discretional. Discretion is the result of what I call ‘systemic indeterminacy’. Systemic indeterminacy is the thesis that claims that typical rational legal systems that have an interpretative code with more than one interpretative directive and the non-redundancy clause are necessarily indeterminate. Since typical rational legal systems do not have redundant rules a plurality of interpretative directives will necessarily yield a plurality (...) of interpretative results. Due to the non-liquet rule judges are obligated to choose among the different interpretative results provided by the interpretative code. In other words, by building a thesis on legal indeterminacy as the consequence of having a plurality of interpretative directives that necessarily yield different results, I proceed to provide an account of discretion as a necessary feature of legal adjudication. (shrink)

The author studies selected fundamental literary records from Great Moravia of the 9th century (The rules of the holy fathers [Zapovědi svatych otcov], Judicial law for laymen [Zakon sudnyj ljudem], Nomocanon [Nomokanon], Adhortation to rulers [Vladykam zemle Božie slovo velit]) presumably compiled, translated or created by Constantine (Cyril) and Methodius, the Thessaloniki brothers. In the context of defining early and medieval Christian ethics, the author concluded that the texts in question contain elements of the Christian code of ethics, (...) by means of which Constantine (Cyril) and Methodius, following the model of the Byzantine Emperors Leo III and Constantine V, wished to form the social morality of Great Moravia. Based on this, the author holds the opinion that the history of Christian ethics in Moravia, Slovakia and Bohemia goes as far back as the activities of Constantine (Cyril) and Methodius and the period of Great Moravia. (shrink)

Although many physicians have been using the internet for both clinical and social purposes for years, recently concerns have been raised regarding blurred boundaries of the profession as a whole. In both the news media and medical literature, physicians have noted there are unanswered questions in these areas, and that professional self-regulation is needed. This report discusses the ethical implications of physicians’ nonclinical use of the internet, including the use of social networking sites, blogs, and other means to post content (...) online. It does not address the clinical use of the internet, such as telemedicine, e-prescribing, online clinical consultations, health-related websites, use of electronic media for clinical collaboration, and e-mailing patients (some of which are already covered in the AMA’s Code of Medical Ethics). (shrink)

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code which was in (...) force at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality. (shrink)

Proportionality in Action presents an empirical and comparative exploration of the proportionality doctrine, based on detailed accounts of the application of the framework by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The analysis of each country is written and contextualized by a constitutional scholar from the relevant jurisdiction. Each country analysis draws upon a large sample of case law and employs a mixed methodological approach: an expansive coding scheme allows for quantitative analysis providing comparable (...) and quantifiable measurements, which is enriched by qualitative analysis that engages with the substance of the decisions and captures nuance, contextualizing the data and providing it with meaning. The book concludes with a comparative chapter that synthesizes some of the most interesting findings. Focusing on deviations of the practice of proportionality from theory, the authors conclude their argument in support of an integrated approach to the application of proportionality. (shrink)

This article critically reviews what is known about the ethical status of psychologists’ putative involvement with enhanced interrogations and torture (EITs). We examine three major normative ethical accounts (utilitarian, deontic, and virtue ethics) of EITs and conclude, contra the American Psychological Association, that reasonable arguments can be made that in certain cases the use of EITs is ethical and even, in certain circumstances, morally obligatory. We suggest that this moral question is complex as it has competing moral values involved, that (...) is, the humane treatment of detainee competes with the ethical value/duty/virtue of protecting innocent third parties. We also suggest that there is an ethical duty to minimize harm by making only judicious and morally responsible allegations against the psychologists alleged to be involved in EITs. Finally, we make recommendations regarding completing the historical record, improvements in the professional ethics code, and the moral treatment of individuals accused in this controversy. (shrink)

The mismatch between the demand for, and supply of, health products has led to the increasing involvement of courts worldwide in health promotion and marketing. This study critically examines the implementation of one country’s Milk Code within the framework of the International Code of Marketing of Breast-Milk Substitutes, and the efficacy of the judicial process in balancing corporate marketing and state regulatory objectives. Drawing upon the Philippine experience with its own Milk Code, it evaluates the capacities (...) of courts to determine policy costs and risks against the benefits of delineating and containing corporate marketing strategies for milk substitutes and supplements. The study finds that the methodological and information-based challenges faced by courts in resolving multi-dimensional health issues may not be overcome without serious questions concerning the legitimacy of the judicial process itself. Despite the deficiencies of litigation and adjudication, the study notes the catalytic potential of a judicial decision in opening up vital policy space for future renegotiations among rival parties and interests. Third-party intervention is explored relative to this catalytic function. (shrink)

Tampering with the judicial system has long been regarded as an unethical and illegal standard of corporate behavior. Advances in behavioral research have recently, however, skirted the letter of the law by applying consumer research techniques to the sampling universe from which prospective jurors are selected. This practice has resulted in an unfair and measurable advantage which offsets any balance of ethics and justice.This article adopts a protagonistic perspective to demonstrate research illustrating jury evaluation techniques. Because the legal system, (...) which is based on jurisprudence, does not have the ability or resources to monitor or regulate these practices, the question must be addressed within the domain of business ethics. ... Where does the balance of ethical justice lie? Is the sole objective to win and protect the bottom line of the corporate income statement, or does a code of business ethics apply? (shrink)

One of the key learning objectives in any health professional course is to develop ethical and judicious practice. Therefore, it is important to address how medical and pharmacy students respond to, and deal with, ethical dilemmas in their clinical environments. In this paper, we examined how students communicated their resolution of ethical dilemmas and the alignment between these communications and the four principles developed by Beauchamp and Childress. Three hundred and fifty-seven pharmacy and medical students (overall response rate=63%) completed a (...) questionnaire containing four clinical case scenarios with an ethical dilemma. Data were analysed using multiple methods. The findings revealed that 73% of the qualitative responses could be exclusively coded to one of the ‘four principles’ determined by the Beauchamp and Childress' framework. Additionally, 14% of responses overlapped between the four principles (multiple codes) and 13% of responses could not be coded using the framework. The subsequent subgroup analysis revealed different response patterns depending on the case being reviewed. The findings showed that when students are faced with challenging ethical dilemmas their responses can be aligned with the Beauchamp and Childress framework, although more contentious dilemmas involving issues of law are less easily categorised. The differences between year and discipline groups show students are developing ethical frames of reference that may be linked with their teaching environments and their levels of understanding. Analysis of these response patterns provides insight into the way students will likely respond in ‘real’ settings and this information may help educators prepare students for these clinical ethical dilemmas. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and (...) informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

Moet de strafrechter ook de scheidsrechter zijn van het publieke debat? De scheiding der machten in het licht van de vrijheid van meningsuiting voor volksvertegenwoordigers This article contains a critical review of the provisions in the Dutch penal code regarding group defamation and hate speech. It is argued that not only these provisions themselves but also their application by the Dutch supreme court, constitutes a problem for the legitimacy and functioning of representative democracy. This is due to the tendency (...) of the supreme court to employ special constraints for offensive, hateful or discriminatory speech by politicians. Because such a special constraint is not provided or even implied by the legislator, the jurisprudence of the supreme court is likely to end up in judicial overreach and therefore constitutes a potential – if not actual – breach in the separation of powers. In order to forestall these consequences, the protection of particularly political speech should be improved, primarily by a revision of the articles 137c and 137d of the Dutch penal code or the extension of parliamentary immunity. (shrink)

The main purpose of this paper is to explore the role played by logic in the legal domain. In the traditional conception which underlies the movement of codification, judges are able to find in the legal system (the Master System) a unique answer for every legal problem. This entails its completeness, consistency and the possibility of deriving from it the contents of all judicial decisions. Although the ideal model of this conception is supported by important theoretical and political ideals, (...) it has significant shortcomings. The elements of normative systems (Master Systems) are “norms” and not mere “norm-formulations.” A “norm” is the meaning attributed to normative linguistic expressions. The set of all normative expressions, such as statutes, codes, etc. forms what is called the Master Book. One of the main problems for the ideal model is the identification of a normative system behind the Master Book. Interpretative arguments are the tools designed to solve these problems. Although the requirements of the model are not totally fulfilled in actual practice, it remains as an effective ideal rational goal behind legal activities linked to adjudication and most theoretical approaches to law. (shrink)

In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated (...) class='Hi'>judicial awareness of the evidentiary requirements for the availability of defences at common law and explicitly defines “honest belief” as a belief that is neither reckless nor willfully blind. As a consequence of these common law developments, the defence of mistake of fact with respect to age is rarely available as a matter of law. Properly used, these common law analytic tools afford minors and under-age sex-workers better legal protection from sexual exploitation than has often been achieved in practice over the last 25 years with the “reasonable steps” requirement under ss. 150.1(4) and (5). -/- Socio-economic inequalities ensure that aboriginal children and youth are disproportionately affected by the non-enforcement, under-enforcement, and selective enforcement of laws enacted to protect minors against sexual assault and participation in sex work. Continued reliance by prosecutors and judges on out-moded jurisprudence in the screening, prosecution, and disposition of these cases in the criminal justice system reinforces existing patterns of inequality and disadvantage and violates basic principles of human rights. (shrink)

In this paper I am concerned to address the question of voluntary or self‐willed death from two distinct positions—a particular community's socio‐religious practice (viz. Jaina sallekhanā) and as the matter stands in law (penal code, constitution, judicial wisdom, etc.) in India—in the light of the recent move by a bench of its apex court striking down the penal code section proscribing suicide. I also wish to draw out some implications of these deliberations for the beneficence of medical (...) practice and related bio‐ethical ramifications in the Indian context. (shrink)

The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. (...) Lambert.--Methods of juridical thinking, by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)

A small sample of sitting Chinese judges was each asked to describe a difficult case, what ethical issues were involved in the case, and how ethics hampered the case, among other questions. The narratives of the cases from family settings suggest—rising from the stew of Chinese social, political, and legal history, the mix of socialist and Confucian ethics, and case facts—that future research on the influence of Confucian ethics may well show that Chinese judges moderate (“democratize”) the rigors of a (...) rule-based legal system, or that they feel pressure to do so by their ethics (which, for disputes and crimes in a family setting their ethics, are Confucian ethics). We argue that “democratizing” the legal system by including society’s ethics is allowable but unless there is a regular discourse on the role of Confucian ethics in legal decisions judges will continue to feel ethical tension as they go about their work. We recommend that ethics discourse be included along with the Chinese government’s structural reforms such as increasing legal education, mandating codes of judicial ethics, and other measures calculated to align the legal system with the Bangalore Principles of Judicial Conduct 2002. (shrink)

The questions of violence, justice and judgment define one of the most resonant and constant concerns of contemporary thought. In part, this is only a reflection of what are often called the ‘realities on the ground’ . In the few years of this century the logic of violence, and even its aestheticisation – whether as terror or as ‘shock and awe,’ or in the citizen’s daily vocation to be ‘alert but not alarmed’ – have become the familiar data of current (...) experience. They are a kind of weather, felt through the colour-coded threat scale of the Homeland Security Advisory System, or in the casual references to the ‘current climate.’ In view of these realities, and of an acclimatisation to them that informs general popular support for extensions of executive power and legislative activity, the urgency of the turn or return to questions of force and law is to be expected. In the fabric of recent debate, they are seams at which confrontations are staged and positions defined; but also, where the thought that remains closest to the ‘realities on the ground’ is forced into juxtaposition with the mythological and theological schemes that violence, justice and judgment inevitably conjure. Thus, contributors to this issue of Colloquy were invited to consider whether it was possible to account for a difference between violence, terror and revolution, without simplification or banalisation of the relationship between law and force. On the one hand, the editors envisaged that this question would be a provocation to reexamine contemporary representations of sovereignty, jurisdiction and the ‘state of exception,’ in a global context dominated by issues of security and the justification of extra-legal and extra-judicial force – occupation, detention, torture. On the other hand, the reference to the mythological and the theological was inevitable, inasmuch as contributors were invited to organise their reflections around two of the most significant interventions in twentieth-century jurisprudence and political theory, Walter Benjamin’s “Critique of Violence” and Jacques Derrida’s “Force of Law.” For as is well-known, Benjamin and Derrida pursue their distinctive lines of questioning in the direction of a ‘divine violence’ or of a ‘mystical foundation of authority.’ The reception of the two texts suggests that these concepts remain, for many, difficult to the point of being indigestible; at least in the ‘current climate.’. (shrink)

ABSTRACTCourts are starting to keep data about the numbers of litigants who personally file court documents and appear without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a ‘problem’ however, is arguable. This article explores the concept of the unrepresented litigant in a strange and unnavigable milieu and the ethical duties of lawyers as officers of the court in that context. Focussing on (...) Australian examples, the primary aim of the article is to highlight the lack of guidance in both codes of ethical conduct and judicial commentary on ethical issues for lawyers faced with an unrepresented opponent. Ethical issues at various stages of the dispute resolution process are discussed, including the complexities involved with unbundled legal services. The author argues that as an officer of the court, counsel should assist the judicial officer and consider the situation through a lens of ethical reaso... (shrink)

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features and practical considerations . The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues (...) that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue. (shrink)

The essays in this volume offer a reassessment of Jeremy Bentham's strikingly original legal philosophy. Early on, Bentham discovered his 'genius for legislation' - 'legislation' included not only lawmaking and code writing, but also political and social institution building and engineering of public spaces for effective control of the exercise of political power. In his general philosophical work, Bentham sought to articulate a public philosophy to guide and direct all of his 'legislative' efforts. 0Part I explores the philosophical foundations (...) of his public philosophy: his theory of meaning and framework for analysis and definition of key concepts, his theory of human affections and motivations, and his utilitarian theory of value. It is argued that, while concepts of pleasure and happiness play nominal roles in his theory of value, concepts of publicity, equality, and interests emerge as the dominant concepts of his public philosophy. Part II explores several dimensions of Bentham's jurisprudence, including his radically revised command model of law, his early reflections on justice and law in adjudication, his theories of judicial evidence, constitutional rights, the rule of law, and international law. The concluding essay demonstrates the centrality of the notion of publicity in his moral, legal and political thought. Emerging from this study is a positivist legal theory and a utilitarian moral-political philosophy that challenge in fundamental ways contemporary understandings of those doctrines. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

The objective of our research is to examine the diverse methods of judicial interpretation, taking off from that established in Article 4 of the Venezuelan Civil Code. We attempt to explain what and how to interpret using the exegetic method of interpretation through an exhaustive analysis of the article, in agreement with Article 22 of the Penal Process Organic Code. Emphasis is placed on the classical methods of legal interpretation: grammatical, logical-systematic, and historical-comparative, among others.

It is a constitutional demand for judges to be objective. Ethical codes show that objectivity depends on rules enabling individuals to counter their subjectivity. Yet these codes focus on judges’ general behaviour while methodology strives for objectivity in the judges’ core task of applying the law on a specific case. Various methods are examined whether they guarantee or at least contribute to an objective interpretation of the law within the existing margin of interpretation. Conscious application of methodology is elaborated upon (...) as a demand of a democratic state under the rule of law. While the principle of judicial independence already limits control of the external result of the adjudication process, it is almost impossible to control the internal process of applying the law that takes place only inside the judge’s head. Thus, it is up to each judge to ensure objectivity by internally binding themselves to a conscious application of methods - therefore constituting an ethical demand. (shrink)

The extent to which judges in the American federal system and in England and Wales respond to sanctions, in their codes of civil procedure, for non-compliance with those rules, varies according to which of two ‘philosophies of justice’ are prevalent in the judicial culture. Taking as a starting point the application of the ‘ultimate’ sanction, that of exclusion from the trial itself, in the two jurisdictions, the article first draws out the features of the two philosophies, finding them surprisingly (...) similar in both jurisdictions. The article thereafter proposes that the choice of philosophy ought not to rest with individual judges but with the system, as structured in rules, thus suggesting a limited formalist approach to civil procedure. (shrink)

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability (...) offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

For decades, Anderson has been pressing critical theorists and literary scholars to acknowledge the inescapably normative dimensions of their work. Through careful attention to rhetorical styles, she has persuasively argued that epistemological positions and social theories are tethered to “characterological” judgments—to implicit endorsements of ethos. Meanwhile, critical discourse has warmed to the claims of lived experience (the “turn to ethics,” the interest in “affect”), but the “ethical” has remained a negative movement, either as the critique of social and discursive structures (...) or as clearing space for the “other”—and “affect” has been construed as the pleasure and self-care that enable resistance to the pressure of these structures. The questions that galvanize ethical criticism (What is wrong with the way things are?) and theories of affect (How can I survive?) continue to evade the deeper one that Anderson sees as basic to any theorizing: How should I live?The lesson of Anderson's The Way We Argue Now is that ethics without ethos is shallow. In Psyche and Ethos, the lesson is that psychology without morality is benumbed. Though Anderson is characteristically judicious in her reconstruction of the arguments she opposes, there are several rhetorical targets in these lectures. The first is contemporary cognitive science, which pictures moral thinking as either the “belated” rationalization of decisions really made by “automatic” psychological processes or as a mechanism for eliminating “cognitive dissonance.” Anderson shows how these pictures assume an abstracted, “punctual” model of moral experience; their “deflationary” zeal ironically depends on an untenable ideal of moral voluntarism that is then speciously “debunked.” By contrast, novels are able to explore the temporal dimension of moral consciousness, especially through their representation of what she calls “moral rumination,” a concept further developed in her recent contribution to Character: Three Inquiries in Literary Studies. Anderson shows, moreover, that narrative fictions like The Winter's Tale, Middlemarch, and The Beast in the Jungle understand “belatedness” not as evidence for the superficiality of morality but as a distinct mode of moral recognition that can unfold only across time.Anderson worries that the new “eudaimonic” literary criticism, which explores “enabling moods,” unwittingly perpetuates the moral confusion of empirical psychology and “privileg[es] psychological over moral desiderata,” even as certain “psychological states” are “presented as morally desirable.” This contradiction is another iteration of one she has been confronting throughout her career: the strange incapacity of critical discourse either to recognize or to avow the normative claims—the elaboration of an ethos as good or valuable—with which it is nonetheless saturated. Still, the contradiction has been a defining feature of modern “therapeutic culture” (a formulation she employs): the neutral, functionalist descriptions of empirical psychology ostensibly bracket morality, yet some descriptions are inevitably coded as “better” or “worse,” and they are consistently harnessed to fully moral evaluations. It is rare to hear a literary theorist of Anderson's provenance reanimate, if indirectly, the criticism that Philip Rieff, Christopher Lasch, and Jackson Lears directed toward “therapeutic culture,” which has largely been forgotten or vulgarized by right-wing pundits. In essence, however, her plea is similar to theirs: she wants us to acknowledge that the moral life is integral to the “healthy” life; and she wants critics to stop dismissing it as epiphenomenal to either psychology or politics. She sees the novel, and the humanities more broadly, as the preeminent cultural vehicles for “clarifying” the moral life. (shrink)

The obligation of judges to uphold rules of positive law and possibly conflicting ethical values in context: The case of criminalization of homelessness in Hungary This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness (...) exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made. (shrink)

Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th (...) century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty and pardon or clemency, continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions. (shrink)

Those who read only the introductory section of “Physician Obligation in Disaster Preparedness and Response,” the statement from the AMA's Council on Ethical and Judicial Affairs, apparently an elaboration on CEJA Opinion 3-I-04, E-9.067, will find an expression of laudable professional responsibility in the face of a disaster. There the AMA authors explicitly acknowledge “that unique responsibilities beyond planning rest on the shoulders of the medical profession”. They also declare that, “physicians are needed to care for victims. In some (...) instances, this will require individual physicians to place their health or their lives at risk”. As the AMA authors note, these responsibilities have been accepted at least since the writing of Thomas Percival in 1803 and endorsed by the AMA in posting their 1847 code. The commitments are also asserted in the preamble of the AMA's most current Principles of Medical Ethics, which states that “a physician must recognize responsibility to patients, first and foremost,” and again in Principle VIII, which states that “[a] physician shall, when caring for a patient, regard responsibility to the patient as paramount”. (shrink)

This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and implementation. (...) Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

What moral claims do undocumented immigrants have to membership? Joseph Carens has argued that illegal migrants with long-term residence have a claim to national membership because they already are de facto members of local communities. This article builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from membership-based arguments to the rule of law. I argue that the rule of law, as expressed in the principle of legal certainty, provides (...) an alternative justification for the regularization of resident undocumented migrants. The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and nonarbitrary. Thus, as an expression of legal certainty, both civil and criminal codes have statutes of limitation that place a time limit beyond which most crimes and misdemeanors can no longer be prosecuted, and individuals can move on with their lives. Not only do these statutes recognize the individual’s right to be free from arbitrary state control, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. I contend that, in the absence of a statute of limitation on illegal entry, the deportation of settled migrants constitutes an arbitrary act of state power. The article explores a number of judicial rulings to illustrate the argument’s normative logic. (shrink)

What do we know when we know the law? Not a set of rules or theories, but a set of practices that are at bottom practices of reading--reading the texts of the law, reading the world--and writing (including of course speaking), especially writing in news ways in the inherited language of the law. Legal knowledge is a writer's knowledge. It always has as one of its deepest themes the question of justice. These themes are explored through an examination of the (...) Model Penal Code, which respect to which I ask what it would be like to learn this material with an eye to using it as a language of thought and argument. It is full of tensions and fissures about the most important matters, including its conceptions of justice and the purposes of criminal law, its central ideas of blameworthiness as a function of intention or state of mind, and its conception of proportionality. These can be seen as defects to be cured, or as reflections of irremediable tensions deep in our thought about these matters which it is a virtue not a vice of the Code to render explicit. To shift from legislative to judge-made law, I next examine Holmes's famous opinions in Shenck and Abrams, which I read in the light offered by the Model Penal Code, using that text to help define the criminal law issues presented in the two cases. This in turn helps define Holmes's achievement in these cases as a transformation of the criminal law, which leads to his constitutional doctrine. Finally, I analyze Brandeis's opinion in Whitney as an intellectual and rhetorical achievement of a different, and more extraordinary, kind. In all of these, the idea is to demonstrate how it is that legal knowledge is a writer's knowledge: for the drafter of statutes, for the composer of judicial opinions applying statutory and constitutional law alike, and for the lawyer thinking through and arguing a case. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:SENECA FALLS INHERITANCE: DISENTANGLING WOMEN, LEGISLATION AND VIOLENCE IN MONFREDO'S HISTORICAL CRIME FICTION Rosemary Erickson Johnsen National Coalition ofIndependent Scholars That men were not prevented by courts or clergy from mistreating their wives meant that, to society's institutions, women had no value. A man could be jailed, even hanged, for stealing another man's horse, but not even reproached for beating his wife. (Miriam Grace Monfredo, Through a Gold Eagle) (...) Miriam Grace Monfredo's feminist genre fiction, her "historymystery " series featuring nineteenth-century librarian Glynis Tryon, offers an opportunity to find a way ofreading literary texts that is not only feminist, but also Girardian. Girard's work provides two clear ways to construct feminist readings directly, without the mediation of overtly feminist theory. First ofthese is Girard's respect for the "quasi-theoretical" potential of literary texts, especially some of those which attend to apparently trivial matters. In Deceit, Desire and the Novel, Girard argues that (male) novelists offer insights unavailable elsewhere, including those scientific fields that claim to know more than everyone else. In its valuing of questions about snobbism, for example, Deceit, Desire and the Novel offers a woman-friendly model. The (male) novelist's question about snobbism is "too frivolous" for (men of) science, but Girard argues that "in his probe of snobbism the novelist is asking himself in his own way just what Rosemary Erickson Johnsen59 might be the hidden springs that make the social mechanism tick" (220). While I regret the fact that Girard's examples and language often ignore women, I believe his conviction that attention to matters socially coded as superficial and frivolous can produce great insight is one feminist critics can appreciate. The second Girardian tool feminists can rely upon is the method of reading texts of persecution described in The Scapegoat. Girard suggests how we might read texts ofpersecution written by naive persecutors in ways that identify with the persecuted and gather the information unintentionally supplied by the authors: "I call those persecutors naive who are still convinced that they are right and who are not so mistrustful as to cover up or censor the fundamental characteristics of their persecution. Such characteristics are either clearly apparent in the text and are directly revealing or they remain hidden and reveal indirectly" (8). Monfredo's crime novels, set in the mid-nineteenth century and focusing on such disenfranchised groups of citizens as women, slaves, Native Americans, and free African-Americans, depend for their verisimilitude on her ability to read historical sources and literary predecessors in just such a way. Accuracy requires that Monfredo's works be categorized as feminist historical crime novels, however awkward such a lengthy description may be. Her novels observe the principles not only of both genres—historical fiction and detective fiction—but also the political position offeminism, and they meet these multiple demands with considerable skill. Furthermore, resolution in crime fiction depends upon the law; working within that tradition, Monfredo is called upon to seek solutions within the system, to look for justice as the result ofa proper functioning ofthe legal and social systems. Information gathered, whether by the official representatives ofthe law or by amateurs, is turned over to the authorities. While her novels clearly respect that tradition, they also point out some limits to the judicial system's ability to contain violence. Girard's model ofits functioning, as described in Violence and the Sacred, depends upon an equality that whole segments of the society Monfredo is depicting do not in fact enjoy: "The judicial authority is beholden to no one. It is thus at the disposal ofeveryone" (23). Ifwomen cannot own property, enter into contracts or sit on juries, in what sense is the law at their disposal? Monfredo's exploration ofthis question takes its place alongside Girard's explanation of the legal system's proper functioning; ifhis theory reveals how it works when all are enfranchised, her fiction suggests some ofthe consequences that result from the existence of disenfranchised subjects. 60'Seneca Falls Inheritance' Our Seneca Falls Inheritance In her first book, Seneca Falls Inheritance (1992), Monfredo offers a theory for the reduction of violence against women: provide women with complete legal equality. The... (shrink)

This article examines the race-thinking and colonial reasoning circulating in two recent developments in Canadian law with respect to polygamous marriage: the Polygamy Reference that upheld the Criminal Code provision on polygamy and the Zero Tolerance for Barbaric Cultural Practices Act. This legislation introduced changes to Canada’s immigration regulations, which include the practice of polygamy as a basis for refusing foreign applicants and deporting foreign nationals. I address how insights from the field of evolutionary psychology were applied in the (...) Polygamy Reference and what discursive and material resonances they had in the Zero Tolerance Act. Drawing on the work of Sylvia Wynter, I situate these judicial and legal developments in relation to violence, within colonial formations of state power, and as forces supporting white supremacy through the continuing valorization of monogamy as a foundational aspect of social and sexual citizenship in Canada. (shrink)

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section (...) 273.2 in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

Evasion of value added tax (VAT) is a pressing criminal justice problem; however, there still are no theoretical studies on the specific nature of this offense and the basis of its legal evaluation. This article is an attempt to explain the preconditions of the origin of this type of fraud and its connection with the Value Added Tax Law, to formulate the conceptual understanding of the offense, to reveal the important aspects of its legal evaluation and to discuss relevant examples (...) from the case-law. The preconditions of VAT fraud lie in the legal nature of tax administration and the particularity of VAT regulation creating opportunities to abuse the right of deducting the overpayment from the budget or reducing the tax payable. The system of tax crimes stipulated in the Criminal Code is not sufficient to properly assess the impact and danger of VAT fraud. The judicial practice considering VAT deception as property fraud is theoretically justified and welcome. (shrink)

In countries outside the developed world, although writers have written commentaries on specific legal codes, very little attention has been given to legal writing which has focused specifically on the ethics of the legal profession. This book makes a special contribution in that regard providing, as it does, a comparative study of prevailing efforts to enhance ethical standards in a profession potentially in crisis and under much public scrutiny. Countries which have been examined include the UK, the US, Canada, South (...) Africa, and countries in the Pacific, South East Asia and the Caribbean. Valuable guidance and learning are provided on such topical issues as wasted costs orders, conflicts of interests, legal and judicial codes, confidentiality, privilege and the ethics of the criminal process, where the jury system comes in for critical evaluation. This book will be a valuable text on the ethics and status of the profession. It will be of considerable interest to law students, practitioners and legal academics, Bar Associations, Attorneys-General and Directors of Public Prosecutions as well as members of the judiciary. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Concurrent Contents: Recent and Classic References at the Interface of Philosophy, Psychiatry, and PsychologyArticlesAntonak, R. J., C. R. Fielder, and J. A. Mulick. 1993. A scale of attitudes toward the application of eugenics to the treatment of people with mental retardation. Journal of Intellect Disabilities Research 37:75–83.Arens, K. 1996. Commentary on “Lumps and bumps.” Philosophy, Psychiatry, & Psychology 3:15–16.Bavidge, M. 1996. Commentary on “Minds, memes, and multiples.” Philosophy, Psychiatry, (...) & Psychology 3:29–30.Blashfield, R. K. 1973. Evaluation of the DSM-II classification of schizophrenia as a nomenclature. Journal of Abnormal Psychology 85(2):140–150.Braude, S. E. 1996. Multiple personality and moral responsibility. Philosophy, Psychiatry, & Psychology 3:37–54.Broverman, I. K., S. R. Vogel, D. M. Broverman et al. 1972. Sex-role stereotypes: a current appraisal. Journal of Social Issues 28:59–78.Broverman, I. K., D. M. Broverman, P. E. Clarkson et al. 1975. Sex-role stereotypes and clinical judgments of mental health. Journal of Consulting and Clinical Psychology 34:1–7.Checkland, D., and M. Silberfeld. 1996. Mental competence and the question of beneficient intervention. Theoretical Medicine 17(2):121–134.Clark, S. R. L. 1996. Commentary on “Multiple personality and moral responsibility.” Philosophy, Psychiatry, & Psychology 3:55–57.Clark, S. R. L. 1996. Minds, memes, and multiples. Philosophy, Psychiatry, & Psychology 3:21–28.Dickenson, D., and D. Jones. 1995. True wishes: The philosophy and developmental psychology of children’s informed consent. Philosophy, Psychiatry, & Psychology 2:287–303.Donaldson, T. 1978. Psychoanalyzing the practical inference model. Philosophical Research Archives 4:1215.Eekelaar, J. 1995. Commentary on “True wishes.” Philosophy, Psychiatry, & Psychology 2:305–307.Fisher, S., and R. P. Greenberg. 1993. How sound is the double-blind design for evaluating psychotropic drugs? Journal of Nervous and Mental Disease 181:345–350.Fulwiler, C., and M. F. Folstein. 1995. Commentary on “Chris Walker’s interpretation of Karl Jaspers’ phenomenology.” Philosophy, Psychiatry, & Psychology 2:345–346.Heinze, M. 1995. Commentary on “Moralist or therapist?” Philosophy, Psychiatry, & Psychology 2:31–32.Iturrate, M. 1977. Man’s freedom: Freud’s therapeutic goal. Review of Existential Psychology and Psychiatry 15:32–45.Littlewood, R. 1991. From diseae to illness and back again. Lancet 337:1013–1015.Maddox, J. 1993. New genetics means no new ethics. Nature 364:97.McCormick, S. 1995. Commentary on “True wishes.” Philosophy, Psychiatry, & Psychology 2:309–310.Murray, T. H. 1995. Commentary on “True wishes.” Philosophy, Psychiatry, & Psychology 2:311–312.Muzika, E. G. 1989. Object relations theory, Buddhism, and the self-synthesis of eastern and western approaches. International Philosophical Quarterly 30(1):59–74.Parker, M. 1995. Commentary on “True wishes.” Philosophy, Psychiatry, & Psychology 2:313–314.Phillips, J. 1996. Key concepts: Hermeneutics. Philosophy, Psychiatry, & Psychology 3:61–69.Pole, D. 1970. Self and personality. The Journal of the British Society for Phenomenology 1:30–36.Priebe, S. 1989. On the subjectivity of psychiatric diagnosis. Psychiatric Praxis 16:86–89.Radden, J. 1996. Lumps and bumps: Kantian faculty psychology, phrenology, and twentieth-century psychiatric classification. Philosophy, Psychiatry, & Psychology 3:1–14.Sampson, E. E. 1981. Cognitive psychology as ideology. American Psychologist 36:730–743.Sarbin, T. R. 1976. Contextualism: A worldview for modern psychology. Nebraska Symposium on Motivation 24:1–41.Senft, P. A. 1975. The self-contradictions (antinomies) of psychotherapy: Is a solution in social action possible? The Human Context 7:367–372.Shuman, D. W. 1996. Commentary on “Multiple personality and moral responsibility.” Philosophy, Psychiatry, & Psychology 3:59–60.Sprigge, T. 1996. Commentary on “Minds, memes, and multiples.” Philosophy, Psychiatry, & Psychology 3:31–36.Wallace, K. 1996. Commentary on “Lumps and bumps.” Philosophy, Psychiatry, & Psychology 3:17–20.Wells, L. A. 1995. Commentary on “True wishes.” Philosophy, Psychiatry, & Psychology 2:315–317.Wiggins, O. P., and M. A. Schwartz. 1995. Chris Walker’s interpretation of Karl Jaspers’ phenomenology: a critique. Philosophy, Psychiatry, & Psychology 2:319–343.BooksAmerican Hospital Association. 1994. Values in conflict: Resolving ethical issues in health care. 2nd ed. Chicago: American Hospital Association.American Medical Association. 1992. Code of medical ethics: Annotated current opinions of the council on ethical and judicial affairs. Chicago: American Medical Association.———. 1994. Council on ethical and judicial affairs... (shrink)

The political prophecy ascribed to John of Bridlington consists of twenty-nine poems, each about twenty to thirty lines long in rhyming hexameters; in four manuscripts it is accompanied by a prose commentary, which explains the cryptic codes and interprets the prophecies.1 The Commentary is “signed” in a cryptogram “Ergom,” that is, John Ergom , an Austin friar of the priory at York. Recent scholarly opinion has generally held that the attribution to John of Bridlington, John Thwenge, is a late fiction, (...) as contemporaries would not attribute a “prophecy” to someone who had manifestly witnessed the events that he claimed to foretell; and that Ergom himself was the author of both the Prophecy and the Commentary. Only Paul Meyvaert has dissented from the second view, arguing that Ergom did not make use of the attribution to “Robert the Scribe,” which was attached to the poem in its earliest version; Meyvaert also notes that Ergom's version of the Prophecy lacked verses found in other manuscripts and that Ergom did not have the command of vocabulary shown by the original author. The most recent investigator, Michael J. Curley, has presented both sides of the argument judiciously; in favor of Ergom's authorship he draws attention to the commentator's interpretative skill, which, he argues, could only have come from an author's knowledge of the meaning of the poem. (shrink)