Drawing on debates about Intangible Cultural Heritage (ICH) safeguarding at the local and international level, Intangible Cultural Heritage and Sustainable Development: Inside a UNESCO Convention, explores the theoretical and practical implications of the intertwinement between these policy fields. Considering how Sustainable Development (SD) priorities are influencing representations of ICH, the volume questions how they are expanding the frontiers of the heritage realm and unsettling accepted understandings of the social uses of heritage. The contributing authors, who hail from (...) a variety of different contexts and disciplinary backgrounds, explore these issues from a unique vantage point as both scholars and actors of the processes they analyze. Playing different roles in the implementation of the Convention, their positioning as insiders allows for a unique analytical perspective that is based on first-hand engagement with the practices of the Convention. Intangible Cultural Heritage and Sustainable Development: Inside a UNESCO Convention sheds light on the complexity, potential and consequences of combining ICH and SD at the policy-making level and in heritage practices on the ground. It will be of interest to academics and students working in heritage studies, development studies, anthropology, archaeology, international law, political science, international relations and sociology. (shrink)

Today's world is post-colonial and post-Cold War. These twin characteristics explain why international society is also riddled with the two major forms of injustice which Nancy Fraser identified as afflicting national societies. First, the economic and social disparities between states caused outcry in the 1950s when the first steps were taken towards decolonisation. These inequalities, to which a number of emerging states now contribute, are still glaring and still pose the problem of the gap between formal equality and true (...) equality. Second, international society is increasingly confronted with culture- and identity-related claims, stretching the dividing line between equality and difference. The less-favoured states, those that feel stigmatised, but also native peoples, ethnic groups, minorities and women now aspire to both legal recognition of their equal dignity and the protection of their identities and cultures. Some even seek reparation for injustices arising from the past violation of their identities and the confiscation of their property or land. In answer to these two forms of claim, the subjects of international society have come up with two types of remedy encapsulated in legal rules: the law of development and the law of recognition. These two sets of rights are neither wholly autonomous and individualised branches of law nor formalised sets of rules. They are imperfect and have their dark side. Yet they can be seen as the first milestones towards what might become a fairer international society; one that is both equitable (as an answer to socio-economic injustice) and decent (as an answer to cultural injustice). This book explores this evolution in international society, setting it in historical perspective and examining its presuppositions and implications. (shrink)

The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions provides an international policy lens for analysing broad debates on issues of cultural globalization and development. The interdisciplinary contributions in this volume offer a fresh understanding of these key issues whilst examining cultural globalization, which is conceived in terms of artistic expressions and entertainment industries and interpreted anthropologically as the rituals, symbols, and practices of everyday life. The broad gamut of (...) theories, methods, and evidence collected by the editors outlines UNESCO's accomplishments, shortcomings, and future policy prospects. This edited collection has a clear message: The Convention is a useful and important instrument in the debate on cultural diversity, but not broad enough or sufficient to confront major challenges concerning human rights, sustainability, and cultural diversity as a whole. (shrink)

The present study aims to assess the restriction of private ownership on the cultural-historical property based on the public interest and evaluate how this restriction is explained and what restrictions the cultural heritage rules and regulations impose on the private ownership. The present descriptive and analytical study seeks to examine the above-mentioned questions using the library method. Based on the results, statute law has defined a large number of restrictions for the owner including the owner restriction in (...) the obligation to declare, implement protection plans, as well as sale and transfer of the cultural-historical property. Theories such as public interest are considered as the basis for the restriction of ownership on historical-cultural property. (shrink)

Intangible cultural heritage is an invaluable treasure for human being and China is a country endowed with rich ICH. Among all the measures of safeguarding ICH, intellectual property tools are effective while controversial. As China started relatively late in the legal protection of ICH, the gap between legislation and judiciary needs to be filled in. This study examines the IP protection of ICH in China based on the current laws and regulations and then provides a semiotic (...) approach to the relevant legal evolution in China. This study, taking in some experiences outside China, goes further to provide recommendations for improving the IP protection in China. (shrink)

This book identifies a need to move beyond discussions of ownership, power and control in favour of exploring new kinds of partnerships between museums and the peoples or countries of origin, partnerships based on equitability and reconciliation.

Considering that culture is the product of creative and human processes, it is believed that intellectual property is a legal tool that allows for its protection given that it helps conserve, safeguard and preserve its tangible and/or intangible assets. In the case of digital heritage, which is made up of digital elements that should be preserved due to their cultural value, some challenges have arisen regarding their legal protection. One of these challenges is the lack of (...) clarity about how the elements that comprise it should be protected, giving rise to doubts about how intellectual property should help solve this conflict. This article presents the discussion regarding the protection of digital heritage in Colombia, how copyright is becoming an instrument that contributes to its legal protection, and the challenges to further develop it in the country. (shrink)

Traditional folk music refers to customary songs and tunes played since time immemorial in a specific area. As an expression of culture and identity, this kind of music can be deemed as the heritage of the local community in its entirety, and derives from musical practices transmitted orally and repeated over a long period of time by a group of people, who, in so doing, keep their traditions alive. From this point of view, the owner of traditional folk music is (...) not a specific composer, but all the members of a local community. But this clashes with the efforts to copyright traditional folk music expressions, since often copyright acts do not recognize forms of collective ownership on folklore and traditional knowledge. This paper aims to discuss possible solutions to tackle the issues related to the protection of traditional folk music, by considering not only the literature in the field of intellectual property, but also the outcomes of the legal formants and the comparative methodology, taking into consideration the studies of the social sciences involved in this topic, in particular anthropology and ethnomusicology. The final task is to find a place for traditional folk music within the framework of copyright law and verify its level of protection. (shrink)

Legal scholars and philosophers have long been engaged in what has been called 'the pursuit of the holy grail of property' - the secret of the internal structure of property in law. Attempts to capture the idea of property have encountered two fundamental problems. First, it has been notoriously difficult to advance beyond the observation that property involves 'ownership' of 'things', with the incidents of ownership and the list of things owned an essentially descriptive task. Second, (...) it is difficult to explain the wildly inconsistent power that property rights - even when identified - seem to enjoy.In this book, Professor Underkuffler advances our understanding of what property is, as an idea, and the power that claimed property rights should have against competing public interests. There is, she argues, a deeper analytical structure of the idea of property that we can uncover, and - as a result of that discovery - deeper reasons that we can find for property's variable power. It is not a random or unprincipled event that property generally protects in cases involving land titles or patent claims, and fails to protect in cases involving environmental regulation or redistributive taxation. She argues that these results are driven - indeed, predetermined - by the nature of property, as an idea, and the conflicts of that idea with competing public interests. The implications of this book are far-reaching. It explains and justifies - on new grounds - why some property claims are traditionally powerful in law, and others not. It suggests how property rights in controversial or emerging areas should be treated, such as those involving the body as property, personal information as property, cultural property, and state redistributive claims. Finally, it establishes why the protection of property is, in fact, necessarily different from freedom of speech, freedom of religion, due process of law, and other rights - necessitating its different treatment, and lesser protection, as a constitutional right. (shrink)

For the first time, full coverage of the intersections of philosophy and law From articles centering on the detailed and doctrinal exposition of the law to those which reside almost wholly within the realm of philosophical ethics, this volume affords comprehensive treatment to both sides of the philosophicolegal equation. Systematic and sustained coverage of the many dimensions of legal thought gives ample expression to the true breadth and depth of the philosophy of law, with coverage of: *The modes of knowing (...) and the kinds of normativity used in the law *Studies in international, constitutional, criminal, administrative, persons and property, contracts and tort law-including their historical origins and worldwide ramifications *Current legal cultures-such as common law and civilian, European, and Aboriginal *Influential jurisprudents and their biographies *All influential schools and methods Coverage of all major historical, cultural, and geographical settings for legal philosophy A thorough understanding of any legal issue necessitates an acquaintance with its antecedents and its corollaries. Thus, added to the consideration of other current legal cultures outside of North America are treatments of other periods significant to legal thinking, such as the Hellenistic, Sixteenth-century, or Federalist. Discussion of the practice of legal philosophy today In every major area where public policy gives rise to philosophical inquiry regarding the law, debates and discussions are covered in full: tort reform, protection of life and death, gay rights, objectives in punishment, non-putative detention, international deterrence, legitimacy of government. And the historical and international dimensions of these issues-how they are resolved in other times and places-are not lost. Contributions from prominent legal and philosophical scholars from around the world The international array of more than 300 contributors from over forty countries complements the volume's international scope. With many contributors being forces in the very debates they write of, some fifty percent of them work in the law-as judges, jurists or jurisprudence-and another half are philosophers in the social sciences and humanities. Their work spans the practice that is taken for philosophy of law today. Special features *Contributions of more than 300 international scholars from more than 40 countires *Extensive bibliographies at the end of each entry *Detailed subject guide for easy access to the main topics covered *Comprehensive, analytical index. (shrink)

The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests to strengthen claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ everexpanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors (...) as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this period, activists promoted the idea of the public — and not simply the author — as primary to the workings of American copyright. The framing of the purposes of copyright, the appeal to a broader public, and the complex negotiations surrounding the passage of an international copyright act after a long period of gestation was formative to the creation of modern United States copyright law. Ironically, the movement for international copyright also sharpened the identification of interest groups. The first modern American comprehensive copyright legislation, the 1909 Copyright Act, was drafted by gathering together these groups for negotiations remarkably similar in style to those which led to the protection of the rights of foreign authors — but which would strongly embrace a proprietary model. (shrink)

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

The successful global diffusion of formal democracy has gone hand in hand with the hollowing out of its substance. Ever more realms of domestic public policy are removed from the purview of national legislative deliberation and insulated from popular scrutiny. Rhetoric of accountability has accompanied the increasing unaccountability of international financial and trade organizations, transnational corporations as well as of states and NGOs. The new architecture of global governance characterized by legal plurality and overlapping sovereignties has facilitated a game (...) of ‘passing the blame’ among these four actors. There is a curious ambivalence in current debates on globalization about the role of the state, which is conceived of as both central and marginal. Globalization is seen to be marked by the decline of both the external and the internal sovereignty of the state. Contrary to such a view, it will be argued here that the state is both an agent and an object of globalization. Although inadequate, the state remains indispensable as its laws and policies play a key role in transposing neo-liberal agendas to the national and local levels. If in the age of globalization and of economic Empire, political violence has been replaced by legal violence, resistance to it is also articulated in the language of law. This paper focuses on the dynamic of legal politics against impoverishment and dispossession caused by the new global designs of intellectual property protection, biodiversity conservation and privatization of the commons in India. The case studies in this paper point to the emergence of intertwined structures of rule, overlapping sovereignties and complex processes of legal transnationalization that have reconfigured the relations between law, state, and territoriality. If welfare states were concerned with the redistribution of risk and resources, cunning states seek to redistribute responsibility. Sensitivity to the history of colonialism would be an important corrective to the presentism and Westerncentrism of analyses of (legal) globalization. (shrink)

The results show that the Religious Courts play an important role in harmonising Islamic law with national development policies and international legal standards, particularly in the context of protecting the rights of women and children. However, challenges exist in harmonising interpretations of Islamic law with the principles of human rights and gender equality guaranteed by international conventions such as CEDAW. This research uses a qualitative approach with a case study method to analyse the relevance of Religious Court decisions (...) related to marriage to national development policies as well as their relationship to international law. Primary data was obtained through analysis of Religious Court decisions in several regions of Indonesia in the last five years covering marital issues such as divorce, polygamy, child custody, and division of joint property. Secondary data included national policy documents, such as the RPJMN, as well as international legal instruments such as CEDAW. This research identifies the need for progressive reforms in the Religious Courts system, including capacity building of judges in understanding international law, revision of the Compilation of Islamic Law, and strengthening co-operation between relevant institutions. The innovative contribution of this research lies in its in-depth analysis of how the Religious Courts can serve as a bridge between religious law, national development policy, and Indonesia's international obligations. (shrink)

In contemporary society, information unsurprisingly morphed into commodity. The IT industry that functions in the market economy and that perceives information as commodity encountered numerous problems that are related to specific features of information. These problems triggered two parallel developments aiming at the protection of intellectual property claimed for the creation of informational contents. On the one side, traditional intellectual property laws were expanded to cover certain aspects of privately owned or privately claimed cultural information. On (...) the other side, new technological devices were developed to provide technological protection for information defined as private property. Tensions and rivalry between both areas of regulation, legal and technological, became particularly visible within the debate about Digital Rights Management (DRM). This debate emerged as a response to institutionalized legal protection of intellectual property that was frequently perceived in the concerned industry as rigid and inadequate. Nowadays, tensions between legal and technological means of protection remain problematic in the emerging law of information. These tensions are rooted in mutually excluding economic interests, yet also in the concepts in which they are expressed and regulated. Therefore, this essay analyzes processes of concept creation in the named approaches to information perceived as commodity. It shows that the adequate solution of regulatory problems depends upon the clarification of conceptualization processes in legislative initiatives rather than on compromises related to economic interests of stakeholders taking part in the debate about the appropriate attribution of digital property rights. This essay concludes upon the idea that legislative measures constitute the most efficient mechanism to regulate social conflicts, not only in the area of digital law. As a further consequence of this finding, the author proposes an overhaul of the concept of copyright as the first step towards a better conceptual framing of the law of cultural contents. (shrink)

Copyright is at the centre of both popular and academic debate. That emotions are running high is hardly surprising – copyright influences who contributes what to culture, how culture is used, and even the kind of persons we are and come to be. Consequentialist, Lockean, and personality interest accounts are generally advanced in the literature to morally justify copyright law. I argue that these approaches fail to ground extensive authorial rights in intellectual creations and that only a small subset of (...) the rights accorded by copyright law is justified. The pared-down version of copyright that I defend consists of the right to attribution, the right to have one’s non-endorsement of modifications or uses of one’s work explicitly noted, and the right to a share of the profit resulting from the commercial uses of one’s work. I also cursorily explore whether contribution to another person’s work gives rise to moral interests. (shrink)

Purpose: Organ donation and transplantation are practices that are supported by all of the world's major religions, including Sikhism, Christianity, Hinduism, and Judaism. Recent developments in the fields of organ donation and organ transplantation have sparked a renewed sense of optimism for the treatment of critical illnesses. The jurists permitted organ transplants on the basis of certain principles, including ownership and categories of property. On the other hand, moralists strive to deny the ownership of human organs by using principles (...) such as faith and Almighty Allah’s absolute authority. Then main objective of this research paper is on one hand to identify and emphasize arguments for and against organ donation and transplantation in the framework of scared provisions of Islam and its corresponding legal requirements and on the other hand to understand and teach the people that not only Islam allows organ donation but also encourage its followers to assist one another and make an effort to promote organ donations in society. Methodology: The doctrinal methodology. Explanatory and analytical research approaches are used in this work. It is worth mentioning that this research study is entirely based on library sources. Most of the sources are reputable and trustworthy textbooks, scholarly published and unpublished journal articles, law reports, and online websites related to the research area. Findings: According to the arguments as well as clear and explicit rulings, principles and authentic evidence from the Holy Quran, it is clear that the donation and transplantation of human body organs is permissible. The Holy religion of Islam persuades its followers to participate in charity, assist people, and donate organs to save the lives of those patients who are waiting for organ transplant. Recommendations: Theoretically, this work is very useful in contributing to the existing body of literature of knowledge. Practically, this work identifies the circumstances in which Muslim jurists not only allow but encourage its followers to assist one another and make an effort to promote organ donations in society in order to save people’s life. It is recommended that both the donor and the recipient of an organ must belong to the same nationality or legal jurisdiction in order to prevent the growth of an international organ trade, which would be far more difficult to regulate. Additionally, in order to protect the health of both the recipients and the donors, it is imperative that transplants from unknown sources be prohibited. (shrink)

As dominant liberal conceptions of the relationship between rights and freedom maintain, freedom is a property of the individual human subject and rights are a mechanism for protecting that freedom—whether it be the freedom to speak, to associate, to practise a certain religion or cultural way of life, and so forth. Rights according to these kinds of accounts are protective of a certain zone of permitted or valorised conduct and they function either as, for example, a ‘side-constraint’ on (...) the actions of others or as a ‘trump’ over governmental or community goals. In such accounts, of course, the emphasis is placed upon the forms of power against which rights protect the individual, whether that be the trespasses of others or the overweening attentions of the state. Such accounts famously do not themselves take much account of the multiple ways in which rights also function as forms of power, often delimiting the courses of action that a putative rights-holder can take and affecting the manner of its exercise, indeed often in the very name of freedom itself. Of course, there is a sizeable critical literature which does address itself to these kinds of question, most notably from the radical traditions of Marxism and critical legal theory, which see rights in terms of the relations of production, consumption and exploitation that they establish between legal subjects. For various reasons, Foucault has not figured as prominently in critical discussions of rights. Here I do not propose to enter into debates surrounding Foucault’s engagement with, or failure to engage with, law as an object of study, nor with the emergent literature on Foucault’s deployments of rights, indeed even of human rights. Rather, what I want to do in this paper is to articulate and defend the view that through a reading of Foucault’s work, both on rights and on power relations more broadly, we can discern an understanding of the political ambivalence of rights. For Foucault (and for some of the post-Foucaultian scholars whose work I shall address, below), rights are both political tools for the contestation and alteration of mechanisms of power and simultaneously mechanisms of inscription, both disciplinary and governmental, which work to conduct those who rely upon them. Far from being an unproblematic tool for the protection of the subject’s freedom, rights emerge in this account as conflicted and ambivalent mechanisms. In the first part of this paper I develop a Foucaultian account of rights along these lines and then hope to illustrate it by reference to several examples, from the constitution of gender and cultural identity via rights to the figure of the refugee, whilst in the final part of the paper I make a return to the idea of freedom in Foucault’s work and link the view of rights developed herein to a certain conception of freedom in his work. (shrink)