Over the past two decades there has been a rapid expansion in our understanding of how human genetic variability impacts susceptibility and severity of disease. Through applications of genome-wide association studies, genome and exome sequencing, researchers have made thousands of discoveries of genetic variants that impact risk of common and rare disorders affecting millions of people. Although these techniques have been primarily applied to highly prevalent chronic disorders such as diabetes1 and cardiovascular disease2, infectious diseases have proven to not be (...) immune to genome-wide association, with studies of Tuberculosis3, HIV4 and SARS-CoV25, to name but a few, identifying host susceptibility loci across the genome. Unlike non-communicable diseases, infectious diseases have the unique element of impacting not only the affected the host, but those who may be most vulnerable to acquiring the infection. Thus, genetic variants that impact one individual’s susceptibility to and severity of an infection may also have broader implications to public health, as was brought into keen focus during the COVID-19 pandemic. Therefore, as we begin to apply the knowledge gained from genomic studies in the clinic or into policy, there are unique ethical, legal, and social implications (ELSI) at the intersection of infectious diseases and human genomics. In this issue of the Journal of Law, Medicine and Ethics, Jose et al attempt to address this need by proposing a research agenda for ELSI studies at what they term the “blurred boundaries” of infectious and genetic diseases.6. (shrink)

Contemporary understanding of the mechanisms of disease increasingly points to examples of “genetic diseases” with an infectious component and of “infectious diseases” with a genetic component. Such blurred boundaries generate ethical, legal, and social issues and highlight historical contexts that must be examined when incorporating host genomic information into the prevention, outbreak control, and treatment of infectious diseases.

This paper investigates the assumptions and ways of understanding the idea of European identity on a spiritual basis, or more specifically, the conditions of possibility for the interpretation of European identity in the context of studying the common cultural history of the European nations. Since our source of interpretation of European history is the principle of the spirit, which in the historical sphere is primarily embodied in the domain of that which is cultural, whose representation is the life of (...) the spirit in art, but primarily in philosophy and religion, we chose the work of British philosopher and cultural historian Christopher Dawson, who demonstrates, in an exemplary way, what we care about most in this paper. Taking into account the hierarchy of degrees of reality – spirit, culture, religion – Dawson constructs the concept of European identity, by definition already common to all European nations as historical creations, interpreting European culture as an expression of the organic. That is exactly why we can talk about the roots of European identity. In terms of all the above said, a common European identity, based on European culture, has its roots in the Christian philosophy and religion, which, according to Dawson, is not a mere idealistic fact, but an expression of historical, political, social, and legal reality. (shrink)

Two important methodological debates in political theory concern (i) the place of historical research and interpretation in normative inquiry; and (ii) the importance of comparing different cultural traditions of political thought. The first question animates a long-standing controversy over the relative importance of ‘history of political thought’ versus ‘philosophy’ in political theory, while the second has been central to the recent growth of ‘comparative political theory’. Despite both debates being concerned, in fundamental ways, with history and comparison, they (...) have remained surprisingly disconnected from broader debates in the humanities and social sciences about the use of comparative history and, in particular, of the prominent methodological approach in political science known as ‘comparative historical analysis’. This may reflect the fact that the debates over history of political thought and comparative political theory have fundamentally revolved around thought—history as the history of thought and comparison as the comparison of thought—whereas comparative historical analysis is more centrally focused on the study of political behaviour. In this paper I suggest that this neglect of comparative historical analysis in political theory represents a missed opportunity. Like other forms of social scientific inquiry, comparative historical analysis can yield important empirical knowledge for political theorists. But I wish to more ambitiously suggest that comparative historical analysis can also be adapted for conducting normative political theory itself. I summarise the key features of comparative historical analysis for political theorists, and explain how its use of historical cases can supplement both the use of imaginary thought experiments and the study of contemporary politics. I then delineate three specific ways in which comparative historical analysis might be used to support normative inquiry: deductive testing, inductive construction, and casuistic elaboration. All three, I argue, can help meet recent calls to bring the study of real political behaviour more centrally into political theory research. (shrink)

Citizenship regimes are institutionalized systems of formal and informal norms that define access to membership, as well as associated rights and duties. This paper studies illegalized migration as one of the major tests to assess whether citizenship regimes are fair institutions, based on a historical analysis of legislation meant to reduce illegalized migration in the United States between 1995 and 2022. We build our empirical research starting from a simple observation: despite the great number of bills introduced to (...) reduce illegalized migration to the US, most of such initiatives fail to become law. In fact, 93.5% of all immigration initiatives did not even pass the chamber of Congress in which they were originally presented. Such a high rate of failure shows that these proposals are motivated by electoral aspirations, rather than coming from a genuine wish to help migrants or grant them citizenship. Furthermore, there is also an economic interest that justifies the maintenance of low-cost disposable immigrant labor, with no right to citizenship. Our analysis is an example of how state regulation processes seem to work to formalize, rather than alleviate or eradicate, the precarious legal statuses of illegalized migrants. We conclude that a globalized phenomenon such as citizenship requires going beyond merely institutional and formal conceptions. We need to rethink the institutional notion of citizenship, as a merely status held under the authority of a state and consider it from a cosmopolitan perspective and a multilateral basis. But as long as citizenship remains under the responsibility of states, illegalized migrants will continue to experience precarious citizenship. (shrink)

The absence of a universally recognized definition of national minority is perceived as problematic by legal scholars on the international level as well as in domestic jurisdictions [Kymlicka, Will. 2015. Solidarity in diverse societies: Beyond neoliberal multiculturalism and welfare chauvinism. _Comparative Migration Studies_. https://doi.org/10.1186/s40878-015-0017-4, Ringelheim, Julie. 2010. Minority Rights in a Time of Multiculturalism-The Evolving Scope of the Framework Convention on the Protection of National Minorities. _Human rights law review_. https://doi.org/10.1093/hrlr/ngp038, Velázquez, Elisa Ortega. 2017. Minority rights for immigrants: From (...) Multiculturalism to Civic Participation. _Mexican Law Review_, no. 1., Dimitras, Panayote Elias. 2004. _Recognition of minorities in Europe: Protecting rights and dignity_. London: Minority Rights Group International]. National minority under Czech law is defined by the Act on National Minorities, and the definition combines the objective and subjective criteria of Capotorti’s [Capotorti, Francesco. 1977. _Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities_, UN Document E/CN.4/Sub.2/384/Add.1–7. p. 96] and Deschênes’ [Deschênes, Jules. 1985. _Proposal Concerning a Definition of the Term Minority_. UN Document E/CN.4/Sub.2/1985/31. paragraph 181] definitions. However, the Czech Minority Act makes a distinction between ‘minorities that have traditionally and for a long time resided in the territory of the Czech Republic’ (§§ 8–12) and other minority groups, while there is no explicit criterion for differentiating among these groups objectively. Such absence of clearcut criteria is often relevant when certain minority groups claim unfavourable treatment due to the authorities’ perception of such national groups as being ‘immigrant’ as opposed to ‘autochthonous’. Additionally, recent case-law has shown that the most ‘traditional’ groups residing in the Czech territory, such as Moravians or Silesians, can equally lack state support, while it is typically argued by Courts that such groups lack ‘distinct features’, be it ethnic, linguistic and cultural, from the majority population and thus do not fall under the legal definition of national minorities (Verdict of the Supreme Administrative Court of the Czech Republic, Ref No 7 As 324/2020-42, of 17 August 2021; Verdict of the Regional Court in Brno, Ref No 62 A 35/2020 − 186, of 8 October 2020). This paper combines doctrinal legal analysis with a socio-legal approach. The language of legislative acts and court verdicts is assessed with the methodology of critical discourse analysis, specifically the discourse-historical approach [Reisigl, Martin, and Ruth Wodak. 2015. The Discourse-Historical Approach (DHA). In _Methods of Critical Discourse Studies_, 3rd edition, eds. Ruth Wodak and Michael Meyer, 23–61. London: Sage]. I focus on nomination, predication and argumentation strategies [Wodak, Ruth. 2009. The semiotics of racism: A critical discourse-historical analysis. In _Discourse, of Course: An overview of Research in Discourse studies_, ed. Jan Renkema. 311–326. Amsterdam: John Benjamins Publishing Company] used by the judges in court verdicts and on the role of perceived ‘tradition’ of certain groups’ residence in the territory of the Czech Republic on their access to state support or, on the contrary, their marginalization. It is concluded that the current state of the Czech law does not allow for the spatial dynamics of minority groups, which are mostly apprehended as fixed categories based on the 19th century idea of nation states and on the 1920s perception of the Czechoslovak nation after the breakdown of the Austro-Hungarian empire. Such approach does not allow for accommodating the rights for more up-to-date categories or for critical revisiting of the catalogue of minority groups as it was defined in the early 20th century. (shrink)

The pre-1932 writings of Otto Kirchheimer are often described by researchers as the work of a young ‘left-Schmittian’, a radical Marxist who gave the anti-liberal critique and theoretical apparatus of his Doktorvater Carl Schmitt a new purpose for different ‘political ends’. The danger of this approach is that fundamental divisions between the societal conceptualizations of both theoreticians are ignored in lieu of apparent terminological similarity. Through the lens of economy, it is therefore the intent of this article to continue in (...) the tradition of Alfons Söllner and Frank Schale, pushing against this assumed affinity and highlighting Otto Kirchheimer’s unique defense of liberal democracy. (shrink)

Rooted in late seventeenth-century theories of rights, liberal ideas have brought forth since the nineteenth century a full-edged complex of traditions in moral, political, economic, social, and legal thought. Yet in historiographical debates such complexity is often blurred by presenting it under the uniform terms of a canon. Along with other methods, conceptual history is contributing to the rediscovery of liberalism's diversity. This group of articles compiles three conceptual studies on scarcely explored aspects of the history of liberalism in (...) Denmark, Finland, and Hungary—countries whose political past has only occasionally figured in mainstream accounts of European liberalism. This introductory article is a methodological discussion of the rationale and forms in which liberalism's historical diversity is rendered through comparative conceptual research. After reflecting on the limits of the Anglophone history of political thought to grasp the plurality of liberal traditions, the article examines how transnational conceptual histories recast the understanding of liberalism as a concept, theory, ideology, and political movement. (shrink)

Modern moral and political philosophy is in debt with natural law theory, both in its ancient and mediaeval elaborations. While the very notion of a natural law has proved highly controversial among 20th Century scholars, the last decades have witnessed a renewed interest in it. Indeed, the threats and challenges as result of multiculturalism, plural societies and global changes have generated a renewed attention to natural law theory. Clearly, it offers solid basis as possible framework to a better understanding of (...) human goods without contradictions and partial bias. The purpose of the present volume is to provide an overview of the history of this concept (Cicero, St. Paul, Aquinas, Melanchthon, Montaigne, Descartes, Leibniz, Hume, Burke, Kant, MacIntyre, etc.) as well as a deep understanding of ongoing research, both in Europe and in America. Furthermore, the specificity of these studies will be of particular value to philosophers, law-philosophers, historians, anthropologists, sociologists and theologians, and those concerned on such issues as the relation between law and moral norm, law and practical reason, and the presence of the idea of natural law in several prominent thinkers. It includes a selected bibliography on natural law. The book also provides an excellent introduction to several of the major topics in natural law theory making it useful both as a reference text and as a sourcebook for academics alike. Natural law is a rich, complex, and highly disputed term. Since its first appearances in the history of Western civilization, it has been used both to point to God as the source of the moral order and to assert that there is an objective order of justice in nature that men and their laws ought to respect. In modern times, natural law theory gave birth to what we usually call "human rights." Unlike the meaning of the term, the importance of an ongoing debate on natural law and on the theories related to it is undisputable. This is why I welcome today this new collection of essays edited by Alejandro Nèstor Garcìa Martìnez, Mario Å ilar and Josè M. Torralba. Natural Law: Historical, Systematic and Juridical Approaches includes a wide variety of studies, covering key authors and issues in natural law theory. Younger students will appreciate the clarity of the chapters, and more trained readers the detailed and accurate bibliographical references that each of them offers. The editors's choice to go from a historical approach to contemporary theories, and then to theoretical and more practical issues is also commendable. Students in philosophy and in legal theory will greatly benefit from this book. Fulvio Di Blasi, author of God and the Natural Law: A Rereading of Thomas Aquinas. (shrink)

This chapter examines the reliability of using the tosefta for historical research. It explains that the tosefta is a compilation of early rabbinic legal traditions which date from the first to the early third century CE. It discusses the different manuscripts, editions and translations of the tosefta. It concludes that the narratives or case stories in the tosefta possess significance for historical research and their relevance ranges from an increased understanding of the daily life of (...) the Jews in Palestine and the activity of the rabbis in society to the more precise determination of their power and position within society. (shrink)

Argumentation theory is a distinctly multidisciplinary field of inquiry. It draws its data, assumptions, and methods from disciplines as disparate as formal logic and discourse analysis, linguistics and forensic science, philosophy and psychology, political science and education, sociology and law, and rhetoric and artificial intelligence. This presents the growing group of interested scholars and students with a problem of access, since it is even for those active in the field not common to have acquired a familiarity with relevant aspects of (...) each discipline that enters into this multidisciplinary matrix. This book offers its readers a unique comprehensive survey of the various theoretical contributions which have been made to the study of argumentation. It discusses the historical works that provide the background to the field and all major approaches and trends in contemporary research. Argument has been the subject of systematic inquiry for twenty-five hundred years. It has been graced with theories, such as formal logic or the legal theory of evidence, that have acquired a more or less settled provenance with regard to specific issues. But there has been nothing to date that qualifies as a unified general theory of argumentation, in all its richness and complexity. This being so, the argumentation theorist must have access to materials and methods that lie beyond his or her "home" subject. It is precisely on this account that this volume is offered to all the constituent research communities and their students. Apart from the historical sections, each chapter provides an economical introduction to the problems and methods that characterize a given part of the contemporary research program. Because the chapters are self-contained, they can be consulted in the order of a reader's interests or research requirements. But there is value in reading the work in its entirety. Jointly authored by the very people whose research has done much to define the current state of argumentation theory and to point the way toward more general and unified future treatments, this book is an impressively authoritative contribution to the field. (shrink)

Recent national calls for ethical, legal, and social implications (ELSI) research to “assess and address how ethical, historical, social, economic, legal, regulatory, socio-cultural, and contextual...

This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law. It explores an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding (...) with and examination of how different social science disciplines intersect with NLR. (shrink)

A central question of this chapter is how we can relate the unique ethos of Japan to the ways that influences of international bioethics, civil rights and legal reforms have shifted medical research in Japan from the legacy of the structured paternalism and impunity that allowed abuses to be committed by medical researchers in the World War II era, including in Unit 731 and in medical schools in Japan, to contemporary research agendas and policies. Throughout the twentieth (...) century, Japan has been a centre of research and innovation. The pro-technology attitudes still exist in current Japan, with the evolution of bioethics. Although we can trace the origins of bioethics in Japan back through millennia, with the Ainu indigenous practices and relationships to nature, the sophisticated hierarchical relationships expressed in the seventh century A.D. book the Kojiki, the conversion of forest to rice paddies, emergence of an integrated religious system including Shintoism and Buddhism, and the sophisticated class system supported by linguistics and social relationships, this chapter would argue that one of the most influential influence for this question is the Samurai tradition. This tradition values both autonomy and informed choice, while also allowing the legacy of tolerance of the elite classes to make decisions that may sacrifice some persons for the greater good. While principles of solidarity and social justice are a solid basis for universal health insurance they also allow sacrifices when necessary. Informed consent is now widely accepted, and bioethics is part of a transition which is transforming Japanese society from a paternalistic society to an individualistic one. Among the issues that will be used to illustrate the situation, are the functioning of research ethics committees, large gene bank and epidemiological projects, organ transplantation, truth telling, euthanasia and the public health measures such as mask wearing in the current COIVD-19 pandemic. (shrink)

_Pakistan gained independence on August 14, 1947. Its democratic system has deep historical roots dating back to ancient times. This study explores the growth and development of grassroots governance in Pakistan. A qualitative research approach was employed, incorporating an extensive review of books on the subject and relevant online materials. The research reveals that grassroots governance in Pakistan has undergone several evolutionary phases, supported by a strong legal and constitutional framework. These constitutional provisions have played a (...) crucial role in reinforcing local governance institutions. The study finds that the system of local governance has provided citizens with the opportunity to manage their affairs through elected representatives, thus empowering individuals across different social strata without discrimination based on caste or creed. This empowerment at the local level has been instrumental in fostering inclusive participation in the democratic process and enhancing the overall effectiveness of governance. The study concludes that grassroots governance in Pakistan not only has a rich historical foundation but also continues to be a vital component of the country’s democratic framework, promoting equity and inclusion._. (shrink)

In the recent decade the perspectives of historical epistemology have turned economic practices into a novel object of study: the focus lies on how discourses, techniques of measurement and valuation produce economic facts.1 The research on the historical epistemologies of economic facts belongs to a broader scholarly endeavor that takes place in cultural anthropology, social theory, literary studies, political theory and history. This interdisciplinary work brings to light how deeply economic issues are constituted by intermingling a set (...) of cultural, political, technical and legal distinctions, which distinguish what counts as properly economic from what does not.2 In this perspective, the very definition of economy becomes a hybrid and contentious affair.The central theoretical question for the historical epistemology and cultural anthropology of economy is currently how to conceptualize the link between epistemic practices and acts of ‘doing the economy’. This special issue on the Historical Episte mology of the Economic pushes us to think about this crucial link. Monika Dommann, Daniel Speich Chassé and Mischa Suter explore different modes of approaching the interlacing of epistemology and economy. These modes can be discussed under the following headings: 1) Pragmatics and Poetologies of Knowledge, 2) Economic Discourses and Epistemic Techniques, 3) Boundaries of Economy. On the basis of the richness of the historical material and the finely grained arguments that these papers bring forth, I will elaborate on the conceptualization of these linkages between epistemology and economy. My discussion culminates in the attempt to clarify an analytical distinction that is freely used in this special issue but that deserves further discussion: the distinction between the economic and the economy as an object of historical epistemology. My question is, does it matter if we write a historical epistemology of the economic or of the economy? What distinction do we wish to make by juxtaposing these two? (shrink)

The scientific validity of racial categories has been the subject of debate among population geneticists, evolutionary biologists, and physical anthropologists for several decades. After World War II, the rejection of eugenics, which had supported sterilization laws and other destructive programs in the United States, generated a compelling critique of the biological basis of race. The classification of human beings into distinct biological “races” is a relatively recent invention propped up by deeply flawed evidence and historically providing the foundation of racist (...) ideology and inequities of power. Social scientists’ conclusion that race is socially constructed was confirmed by genomic studies of human variation, including the Human Genome Project, showing high levels of genetic similarity within the human species. Some scholars came to believe that the science of human genetic diversity would replace race as the preeminent means of grouping people for scientific purposes. (shrink)

Purpose. The study is aimed at highlighting in the historical-comparative context the influence of anthropological teachings on the development and formation of such a legal phenomenon as "legal certainty", proving that the category of legal certainty appeared as a consequence of anthropocentric philosophical approach in law. Theoretical basis. In the article, using the system approach, the content of the term "legal certainty" was analyzed. The axiological approach allowed generalizing various manifestations of legal certainty within (...) the limits of one va-lue concept and generalizing it by formulating and emphasizing the importance of the anthropophilosophical approach in the study of legal phenomena. The method of comparison, analysis, synthesis, generalization of philosophical concepts was used, in which the principle of legal certainty was expressed in different periods of historical development. Originality. This article supports a wide approach to understanding the principle of legal certainty, and the latter one relates to general theoretical legal principles. It is alleged that legal certainty consists of a number of requirements for lawmaking and law enforcement. In conducting a historical analysis for these requirements of legal certainty, it was established that they were historically originated and developed as a part of anthropological philosophical doctrine and subsequently embodied in law. The connection with anthropological teaching in jurisprudence is transformed into a relationship between the realization of the principle of legal certainty and human rights. Conclusions. Anthropological approaches in the study of legal phenomena allow providing value humanistic orientation to law. Human rights and freedoms as the most important social value require observance of them even when the legislation is imperfect, uncoordinated, contains gaps and uncertainties. The principle of legal certainty enables to overcome these difficulties, due to it the requirements of lawfulness and observance of human rights and freedoms are agreed upon. This principle is generally legal, and its content is revealed through a set of components – requirements. (shrink)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 (...) / 3. Timely Issues of Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

Approaches to legal pluralism vary widely across the spectrum of different disciplines. They comprise normative and descriptive perspectives, focus both on legal pluralist realities as well as public debates, and address legal pluralism in a range of different societies with varying political, institutional and historical conditions. Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through (...) comparative examination. This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation. The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meeschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz. (shrink)

This article focuses on land rights, land law, and land administration within a multilayered colonial setting by examining a major land dispute in British-ruled Palestine. Our research reveals that the Mandate legal system extinguished indigenous rights to much land in the Zor al-Zarqa and Barrat Qisarya regions through its use of "colonial law"--the interpretation of Ottoman law by colonial officials, the use of foreign legal concepts, and the transformation of Ottoman law through supplementary legislation. However, the colonial (...) legal system was also the site of local resistance by some Palestinian Arabs attempting to remain on their land in the face of the pressure of the Mandate authorities and Jewish colonization officials. This article sheds light on the dynamics of the Mandate legal system and colonial law in the realm of land tenure relations. It also suggests that the joint efforts of Mandate and Jewish colonization officials to appropriate land and undertake "development" operations in the area were fueled by neither the interests of colonial rule nor those of Jewish colonization alone, but, rather, by the integrated impact of both forces. (shrink)

Legal theory, political sciences, sociology, philosophy, logic, artificial intelligence: there are many approaches to legal argumentation. Each of them provides specific insights into highly complex phenomena. Different disciplines, but also different traditions in disciplines (e.g. analytical and continental traditions in philosophy) find here a rare occasion to meet. The present book contains contributions, both historical and thematic, from leading researchers in several of the most important approaches to legal rationality. One of the main issues is the (...) relation between logic and law: the way logic is actually used in law, but also the way logic can make law explicit. An outstanding group of philosophers, logicians and jurists try to meet this issue. The book is more than a collection of papers. However different their respective conceptual tools may be, the authors share a common conception: legal argumentation is a specific argumentation context. (shrink)

According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of ‘Legal Formalism’ exerted a lasting influence on historical research since the early twentieth century, thereby (...) fostering a deeply charged understanding of nineteenth century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of ‘Legal Formalism’, a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought. (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)

In lieu of an abstract, here is a brief excerpt of the content:Research Ethics after World War II: The Insular Culture of BiomedicineAllan M. Brandt (bio) and Lara Freidenfelds (bio)Human subjects research in the United States has only recently emerged as an important area of historical investigation. Over the last quarter century, scholars have begun the process of grounding within an historical context both the complex relationship between researchers and subjects and the processes by which biomedical (...) knowledge is produced. Their studies examine topics ranging from the impact of the anti-vivisectionist movement on human experimentation in the early twentieth century (Lederer 1995) to the development of the discipline of bioethics in the 1960s and 1970s (Rothman 1991) and the emergence of the legal concept of informed consent for human research (Katz, Glass, and Capron 1972). Many of the discussions focus on isolated incidents of scandal, such as the Tuskegee Syphilis Study (Jones 1993; Brandt 1978) and the Willowbrook School hepatitis study (Rothman and Rothman 1984). In doing so, they attempt to explain how such clearly unethical research could have been initiated and what consequences have resulted from public knowledge of such research.Nonetheless, the broader historical contexts and implications of human subjects research have yet to be fully delineated. This project will be of crucial importance, not only for historians, but also for those concerned with research policy and medical ethics. The historical examination of human subjects research will provide further insight into the details of research methods, the construction of protocols, and the historically specific interest in certain diseases. In addition, scholars will better understand the relationships of power and authority between researcher and subject, as well as the social and scientific mechanisms for the production of new biomedical knowledge. The process of enlisting research subjects illuminates the significance of class, gender, ethnicity, and race in science, in biomedicine, and in society. The fact that, historically, much research has employed research subjects from vulnerable populations, who participated in coercive contexts, has exposed powerful social assumptions embedded in the research enterprise. [End Page 239]The revelation of new documents indicating past abuses has sparked much of the investigation into human subjects research and the recent investigation of human radiation experiments during the Cold War era. One of the most important achievements of the Advisory Committee on Human Radiation Experiments was the uncovering of thousands of documents, a remarkable mine of archival data, that had been previously inaccessible to researchers. Jonathan Moreno and Susan Lederer’s article on the history of Cold War research ethics in this issue of the Kennedy Institute ofEthics Journal represents the first attempt since the publication of the Committee’s Final Report to analyze the Committee’s findings in a serious historical context.Historical accounts of the emergence of bioethics traditionally have left a great void in their discussions of human experimentation, generally ignoring the period between the writing of the Nuremberg Code in 1947 and the publication of Henry Beecher’s 1966 New England Journal ofMedicine article condemning systematic, unethical practices in human experimentation (Rothman 1991). The period from 1946 to 1966, however, was a time of vigorous research characterized by a fragmented community of medical researchers who applied inconsistent ethical standards and employed highly variable research practices. Both military and civilian medical researchers were intensely interested in radiation and thus conducted human subjects research along those lines, including examinations of the effects of plutonium injections and of total body irradiation, the use of trace radioisotopes to study various body processes, and observations of the effects of radiation intentionally released into the environment. The U.S. Government sponsored several thousand such studies (ACHRE 1995 [GPO, pp. 227–31; Oxford, pp. 135–38]), some of which were conducted on hospital patients, institutionalized children, military personnel, and prisoners. The Cold War scientific culture that produced this research must be examined from an historical ethical perspective.A central aspect of the culture of biomedical science after World War II was its insularity. Increasingly high standards of admission and challenging training had come to ensure that only a select group of individuals was admitted to the professions of medicine and research science. In this culture of experts, trustworthiness and ethical judgment were considered to be dependent upon expertise... (shrink)

This piece begins with the author’s epiphanic experience with a glacier, Perito Moreno, Southern Patagonia, and follows a journey of fascination for the edifying power and majesty of ice, as not just a metaphorical demonstration of the laws of thermodynamics, but argued as the clearest presentation of the material processes of legality itself. Most lucid when understood as a border phenomenon and a form of edgework within international law, where water meets land, and melting ice reveals the unravelling of sovereignties (...) as climate change alters sea levels, shipping routes and coastlines; capturing singular moments in entropic aesthetics of legal bifurcation in frozen phase states also are offered as a key method of understanding geo-legal movements. Following from the work of Walter Benjamin and historical materialist scholar Esther Leslie, processes of ice formation and degradation offer “dialectics at a standstill.” This is made possible through forms of entropic aesthetics, and methods of artistic research that reveal a percolating nature of sovereignty, and the petrification of legality. Combining legal pluralist understandings of law, with those of art historical and practice-based research, Susan Schuppli’s evidentiary art and the “material as witness,” is suggested as an exemplary way of identifying and bringing presence to the entropic processes of law, and the legal processes of entropy. Fictional scenes and speculative sketches are woven throughout the text to bring its variant phase states to life. Images and paintings from and prompted by the visit to Perito Moreno are added to the body of writing as emergent beings bearing witness throughout the piece. (shrink)

The purpose of the present paper is to unveil whether the power distance/textual complexity duality attributed ordinarily to legal language applies to two different documents which are widely deployed, interpreted and applied in the global scope of commercial trade and communications, namely Lloyd’s Institute Cargo Clauses and the London International Court of Arbitration Rules. In choosing two texts which are the direct product of the law-making machinery of the Common law system, but which are used internationally, we ultimately undertake (...) to research whether opacity is really inherent to legal texts in English with an international scope of implementation. To scrutinise, illustrate and argue on the degree of difficulty and power distance in such legal instruments, the perspective of genre has been chosen as the most effective of instruments provided by current Applied Linguistics. Genre analysis permits to identify the genre or genres of a specialised professional community connected to the communicative group it comes from, the audience that receives it, the historical and cultural background and the extra-textual reality it aims to represent. The goal of our study, carried out through different levels: formal, discursive and, mainly, pragmatic, is to discern whether there exists any possible equation between power and textual complexity, and the consequences this entails for the understanding of the nature of these major international texts. (shrink)

This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries or individual (...) litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research. (shrink)

Introduction. The development of legal culture and a culture of human rights in the modern world through media technologies, is acquiring special significance in connection with the processes of globalization and the spread of media in recent decades. The purpose of the article is to study the prospects for the use of media education in the formation of the legal social culture and a culture of human rights. Materials and methods. Based on a study of domestic and foreign (...) sources, issues of media education, media literacy, spiritual and moral education, the legal culture of society, the phenomenon of post-truth and ways of forming critical, creative thinking are considered. The use of general scientific, philosophical, and socio-pedagogical methods has made it possible to study media education as a dialogue of learning, stimulating the development of rational, critical thinking, focused on the search for the value foundations of intellectual and social activity. Results. The development of the field of information and communication technologies determines the principles for the formation of the content and orientation of modern education. Media education is interlinked with the development of democracy and human rights. It influences the formation of a culture of citizen participation, their active social position, civic and political culture. Media education plays a significant role in shaping the legal culture of society since critical media research and information research focuses on the analysis of power structures and structures of dominance in the media. A study of the interpretations of the concepts of "media education" and "media literacy" made it possible to show that media education focuses a person on a critical approach to media content. One of the main issues of media education is teaching a person the skills to critically study media and media technologies, which involves addressing the technological, cultural and historical specifics of specific media used at a specific time and place. Information and communication technologies have changed the way of life, work, communication, and ways of selfpresentation, the formation of values, participation in socially significant events. Therefore, a critical approach to mass media should be based on knowledge of socio-philosophical theories, ethics and research in the field of mass media. Discussion. Mass media are constructing a history of human rights, which updates the topic of the media policy of human rights, combining socio-legal, cultural and media theories. Education in the field of acquiring information perception skills, the ability to correctly understand the importance of audiovisual images, to competently handle and navigate information flows are necessary for the life of a modern person in society. (shrink)

What is comparative legal history? This essay argues that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time. To this purpose, this essay begins from two main ideas. -/- First, the writing of legal history is deeply intertwined with an image of law that tells us what law is, how it is created and by whom. This is, in fact, the premise for writing (...) class='Hi'>legal history, as it determines the object of investigation. Second, the decades between 1930 and 1960 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework. -/- Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930–60. At their heart were some of the challenging ideas that have continued to fuel original legal-historical research in the last few decades (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising) and which today are shared as an obvious truth. They are the fruit of the antiformalist turn of between1930 and 1960. (shrink)

Does, or should, social uprising lead to new legal form? Ukraine’s current situation following the Revolution of Dignity in 2013–2014, with continuing violent conflict in Donbas and Crimea, suggests that not only is it unclear how a ‘new’ form is assessed, but existing transitional policies and frameworks are unlikely to be clearly implemented and enforced. An alternative analysis of transformation is necessary to address the conflicting aftermath of uprising within a particular historical and cultural context. The transformation that (...) is happening in Ukraine is a continuum that is intellectual and psychological as much as reforming judicial systems and governance. Thinking transformation differently opens onto narratives, complexity of causes and a plurality of ideas of future, resolutions and justice. Such a shift in thought and analysis, informed by narratives and grounded research, is necessary in order to try to understand the current pursuit of justice in Ukraine. (shrink)

The Iraqi constitution of 2005 grants freedom of religious thought, belief and practice for all religions. This study was also based on the premise that the constitutional rights are not adhered to in Iraq, even by government officials, which could be due to the absence of suitable legislations subsequent to the framing of the constitutional provisions. An analytical and descriptive research design was adopted for this study. Data was collected from primary and secondary sources through documentation research and (...) evaluation of historical sources. The primary data comprised Articles of the Iraqi constitution, and a few national and international legal instruments related to religious freedom. Secondary data included empirical research studies, books, articles and other published sources. This study therefore took the form of an empirical legal research as it involved the issues of constitutional reforms in the field of religious freedom. A comparative approach was adopted in analyzing the documents about religion and politics related to both the Arab region and the West. The focus was on the measures that should be adopted to advance the dialogues of religious freedom and maintain religious neutrality in all government policies. The study found out that there were apparent contradictions between the constitutional provisions and the State Laws. Similarly, the Iraqi civil and penal codes remain silent regarding legal remedies for the violation of constitutional provisions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 15.2 (2005) 211-218 [Access article in PDF] Bioethics, Biolaw, and Western Legal Heritage Susan Cartier Poland Bioethics and biolaw are two philosophical approaches that address social tension and conflict caused by emerging bioscientific and biomedical research and application. Both reflect their respective, yet different, heritages in Western law. Bioethics can be defined as "the research and practice, generally interdisciplinary in nature, (...) which aims to clarify or resolve ethical questions raised by the advances and application of biomedical and biological sciences" (II, Miller 2000, p. 246). Biolaw, on the other hand, is a legal philosophical concept that can be defined as "the taking of agreed upon principles and practices of bioethics into law with the sanctions that law engenders" (p. 246). Some see biolaw as hierarchical, either evolving from or devolving into bioethics (p. 245), while others think of bioethics and biolaw as a continuum or gradation (p. 246). Whichever view one takes, bioethics and biolaw are, at the least, intertwined (II, Loureiro 2000, p. 71).Although bioethics came out of the U.S. in the 1970s, the field is now considered Anglo-American (II, Kemp 2000a, p. 67). Biolaw emerged in the 1990s from the French biodroit and has become associated with continental Europe (p. 68). These distinctions, however, are based on geopolitical entities. Another way to distinguish bioethics from biolaw is to look at their legal heritage and understand the differences between the common law and the civil law.Bioethics and biolaw share a Western legal heritage, specifically roots in Roman law. When the Roman empire in the West fell to Germanic tribes in 476 A.D., the Romans had developed a sophisticated system of law that included flexible standards and abstract, rather than concrete, modes of thought. In 528, Justinian, emperor of the surviving Roman empire in the East at Constantinople, ordered a compilation and consolidation of Roman law. Despite the rise of seventh century Islam, the split of the Christian church into eastern and western branches in 1054, and the Norman conquest of England in 1066, Roman law survived through the courts of canon law and was revived later in the twelfth century at the University of Bologna in Italy. By 1500, what would later become France and Germany had [End Page 211] "received" or recognized Roman law, albeit in varying degrees. Not a single event, the Reception, or "direct acceptance of Roman law as a principal source of law," is the definitive turning point in Western legal history that eventually produced the common law and civil law strands (I, Von Mehren 1957, p. 10).England, however, did not participate in the Reception, although its influence was felt at Oxford University, where Vacarious taught its precepts in 1151, and in the courts of canon law (I, Von Mehren 1957, p. 10). William the Conqueror already essentially had established the common law tradition when he merged Anglo-Saxon law with Norman law and created a centralized system of justice administration for the single fiefdom known as England.Aside from historical development, the common law and the civil law differ from other legal families in terms of their modes of thought, institutions, sources, and ideology (I, Zweigert and Kotz 1977, p. 62). In the common law, Roman legal concepts were shaped by Christian ethics through the canon law courts. In the civil law, Roman law became the basis for a legal science centered in the universities and interpreted by various schools, such as the commentators, the glossators, and the humanists. The civil law uses a central text as the starting point for legal reasoning and analysis. The common law develops over time through case law, that is, by judges applying principles from preceding cases to resolve the issue at hand. One writer describes the common law as "anything that is not prohibited is permitted" and the civil law as "anything that is not permitted is prohibited" (I, Karambelas 2005, p. 28).The common law and the civil law are only two of the three traditions in Western law. The third is socialist law. All three are... (shrink)

This article addresses the boundaries of law and historiography in scrutinizing some rarely analyzed aspects of the works of Reinhart Koselleck. The article studies the significance of the tradition of ‘politico-juridical’ concepts in Koselleck’s thought, by tracing the intellectual history and biographies of some notable legal historians that for the large part defined the legal historical discourse after the Second World War. It is argued that a research of the connections between Koselleck and these legal (...) historians provides an insight into the themes of the temporality of law and the universality of legal concepts in Koselleck’s articles. In contextualizing the thinking and texts of Reinhart Koselleck, this article benefits from previously unused primary sources and illuminates the reference group and intellectual atmosphere in which Koselleck worked in and around 1968. (shrink)

The aim of the article is to answer the question of the importance of legal education in ensuring legal ethics and the moral compass of a person by understanding the most important aspects of it. Methods applied include theoretical-scientific analysis, systematic and critical review of scientific literature and other relevant sources, normative and critical analysis of ethical principles in the context of legal education, empirical-quantitative and qualitative analysis of scholarly articles. According to the main thesis of this (...) article, the integration of ethics into legal education can enhance moral development of future lawyers and improve their ability to serve justice. This paper traces the historical neglect of ethics in legal education and argues for its central place in modern studies. For lawyers to serve justice, a well-defined moral compass is essential. Several conclusions are drawn in this article, and first of all it is believed that universities will have to realise that a good lawyer is not only a professionally competent lawyer, because that is not enough in today’s world. Even if it is a personal journey, universities cannot stand aside, the future lawyer must be helped to grow. What is much more important is not so much the codes of ethics but how our moral compass works and what path it can point us down. To avoid getting lost, law schools could teach future lawyers how to empower their moral compass and find their way around. Each law teacher should have to find ways to teach the key virtues of a lawyer’s moral compass (e.g., wisdom, fortitude, temperance, and justice), how to help law students grow and not burn out in difficult situations. As our empirical research shows, the best scholarly articles on legal education discuss the elements of legal ethics. It is recognised that the ethics of lawyers is increasingly becoming an issue that goes beyond the professional aspects, and it is the university that must contribute to the development of the moral compass. (shrink)

A collection of essays with themes in human rights and legal history, spanning several centuries, containing a tribute to one of the most remarkable jurists of our time. Linked by an historical and contextual approach, these essays add to knowledge of legal history and human rights and provide a reference point for future research.

This is the first of two volumes announcing the emergence of the new legal realism as a field of study. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume 1 lays the groundwork for this novel and comprehensive approach with an innovative mix of theoretical, historical, pedagogical, and empirical perspectives. (...) Their empirical work covers such wide-ranging topics as the financial crisis, intellectual property battles, the legal disenfranchisement of African-American landowners, and gender and racial prejudice on law school faculties. The methodological blueprint offered here will be essential for anyone interested in the future of law-and-society. (shrink)

The aim of this research paper is to examine Latin in the context of legal translation between the Polish, English and French languages. Latin ap- pears in contemporary legal discourse in the form of maxims, short phrases and terms. Even though it constitutes an integral element of legal drafting, Latin often attracts little attention from legal translators. It is falsely assumed that Latin elements of the text do not require translation due to several miscon- ceptions (...) related to the Latin language. Firstly, Latin is generally perceived as a global language with no local variations in form. Secondly, Latin is believed to be the universal point of reference in international communication. Thirdly, Latin legal phrases or maxims are thought to originate solely from Roman law, thus they express only Roman legal thought. In the first part of the paper we will address the above issues. To this end, we will briefly discuss the historical presence of Latin in the European lin- guistic context. We will then present the results of our research into the use of Latinisms in the Polish, French and English legal systems. The subject of our research was a set of twenty Latin maxims and phrases that frequently appear in the decisions of the Polish courts. During the first stage of the analysis, the items in question were verified in Legalis. The second stage of the research involved the consultation of monolingual dictionaries of French and English legal language to verify the universal charac- ter of the analyzed Latinisms. During the third stage of the analysis, we looked at the practical use of Latinisms in online databases of legal texts. The paper concludes with some comments on Latinisms in lexicographical publications and online sources. (shrink)

By presenting original research into British legal history, this volume emphasises the historical shaping of the law by ideas of authority. The essays offer perspectives upon the way that ideas of authority underpinned the conceptualisation and interpretation of legal sources over time and became embedded in legal institutions. The contributors explore the basis of the authority of particular sources of law, such as legislation or court judgments, and highlight how this was affected by shifting ideas (...) relating to concepts of sovereignty, religion, political legitimacy, the nature of law, equity and judicial interpretation. The analysis also encompasses ideas of authority which influenced the development of courts, remedies and jurisdictions, international aspects of legal authority when questions of foreign law or jurisdiction arose in British courts, the wider authority of systems of legal ideas such as natural law, the authority of legal treatises, and the relationship between history, law and legal thought. (shrink)

The article is devoted to the topic of "traces of the past” interpretation; its relevance is due to both the need to improve the training of history majors and the aggravation of the fight against falsifications of history (primarily domestic). The aim of the research is to analyze the correlation of humanitarian, social and technological components in the methodology of teaching historical disciplines. The comparative method was chosen as a key method. The work uses the method of hypotheses, (...) content analysis of the source base, and experience in studying University teaching practice. Identifying the prerequisites for “incorrect" interpretation of historical events, the author compares legal, forensic and philosophical approaches. (shrink)

In my paper I will discuss both the processes of interlingual and intralingual translation of laws. The objective is to establish how the intralingual and the interlingual translation process influence or even shape a particular language of the law affecting thus the laws and the communication in a given legal system. In order to achieve this, I will initially research into the historical process that produced a series of intralingual translations of major laws in Greece and both (...) interlingual and intralingual translations of laws in Cyprus, investigate the main principles used in interlingual and intralingual translation, examine how the languages of the law in Greece and Cyprus were affected by these translations, and show how intralingual and interlingual translation influenced the law both in Greece and Cyprus. (shrink)

Dynamic Consent is both a model and a specific web-based tool that enables clear, granular communication and recording of participant consent choices over time. The DC model enables individuals to know and to decide how personal research information is being used and provides a way in which to exercise legal rights provided in privacy and data protection law. The DC tool is flexible and responsive, enabling legal and ethical requirements in research data sharing to be met (...) and for online health information to be maintained. DC has been used in rare diseases and genomics, to enable people to control and express their preferences regarding their own data. However, DC has never been explored in relationship to historical collections of bioscientific and genetic heritage or to contexts involving Aboriginal and Torres Strait Islander people.In response to the growing interest by First Peoples throughout Australia in genetic and genomic research, and the increasing number of invitations from researchers to participate in community health and wellbeing projects, this article examines the legal and ethical attributes and challenges of DC in these contexts. It also explores opportunities for including First Peoples' cultural perspectives, governance, and leadership as a method for defining DC on cultural terms that engage best practice research and data analysis as well as respect for meaningful and longitudinal individual and family participation. (shrink)

The article discusses the uncertainty of legal definitions of aviation safety and and aviation security, the implementation of which often result in certain restrictions of human rights. In the article, a hypothesis is made that, despite usually treated as well-known concepts, safety and security are not so clear and well-defined, often leaving the reader to guess at their precise meaning. The aim of this article is to identify the core features that characterise aviation safety and aviation security and could (...) disclose their legal content when assessing their comparative weight in relation to the protection of human rights. Supported by holistic approach from different perspectives (socio-cultural, historical, etc.), the phenomenological and hermeneutic analysis allowed providing an in-depth understanding of various meanings of safety and security concepts. An overview of the existing linguistic peculiarities of the use of the terms ‘safety’ and ‘security’ with an emphasis on the importance of determining the context in which they are used as primary evidence of their meaning is followed by the analysis of the common features and differences between the concepts of safety and security that supplements the discourse on the dilemma of combining subjective and objective, relative and absolute perceptions of safety and security. The research from the view point of normative jurisprudence reveals the polysemy inherent in aviation safety and aviation security, especially in terms of the values they represent, suggesting the conclusion that legal definitions of ‘aviation safety’ and ‘aviation security’ should in part be treated as a sort of ad hoc definitions, which have to be developed (clarified) in each particular case. (shrink)

Although the treatment of history in late nineteenth-century American legal scholarship remains largely unexplored, two recent areas of research have discussed this subject tangentially. Historiographical critiques of the emphasis on doctrine by American legal historians typically maintain that late nineteenth-century legal scholars viewed history as disclosing an inevitable evolutionary progression from primitive to civilized forms. This "whiggish" approach, the critiques add, ignored the context and function of past law while apologetically justifying conservative existing law as autonomous (...) scientific truth. Without addressing the historiographical critiques, scholarship about late nineteenth-century legal thinkers has touched on their historical research and assumptions, mostly in passing as part of inquiries about other subjects. Designed primarily to convey how both areas of research have contributed to the historiography of late nineteenth-century American legal history, this article concludes by drawing on my own extensive reading of the original sources. Sometimes in support but often in refutation of the existing secondary literature, my findings reveal that the late nineteenth-century scholars formed a distinctive and sophisticated American school of historical jurisprudence that merits further study. Often warning against the very faults ascribed to them by dismissive subsequent scholars, many viewed legal evolution as a contingent response to social change and urged substantial reform of existing law. The American school of historical jurisprudence, moreover, provides an important intellectual context for new insights into two giants of American legal thought, Oliver Wendell Holmes, Jr. and Roscoe Pound. (shrink)

In this review of Bourne’s and Derry’s Gender and the Law, we reflect on how legal discourses constitute and are constitutive of gender and sexuality norms. We find that Bourne’s and Derry’s book is firmly grounded in both historical legal analysis and contemporary critique and challenges the notion of gender neutrality, which is commonplace in many legal system. It argues for a multifaceted understanding that draws on feminist, queer, as well as transgender theories. Bourne and Derry (...) revisit the discursive power of law through which gender norms are perpetuated and scrutinise its role in reinforcing oppressive gender stereotypes across different legal domains including employment, relationships, and criminal law, inter alia. Their work is divided into eleven chapters. Each of the chapters explores a different facet of gender and law, ranging from historical perspectives on women’s rights to practical implications and issues of implementation in relation to consent and reproductive rights, to name but two. The book represents a useful contribution to the research in discourse analysis on gender and law and offers a helpful foundation for further empirical research in legal linguistics and legal semiotics. At the same time, it is a plea in favour of rigorously dismantling of systemic patriarchal and heteronormative structures within legal discourse locally, regionally, and globally. We suggest that while Bourne’s and Derry’s focus is primarily on the UK and European context, the insights presented clearly have global relevance. This is particularly evident when assessing the social critique the book pursues when assessed against the normative catalogue of the Sustainable Development Goals (SDGs). Based on the insights gained from Bourne and Derry’s work, we call for the transformative integration of gender-critical perspectives into research in legal linguistics and legal semiotics and point out the need to address gender biases in legal discourses with a view to achieving justice and equality for all in legal systems around the globe. (shrink)

The 1930-60s saw the beginning of a fertile stream of research based on a historical-comparative methodology focused on case-law viewed as the paradigm of the true living law. Today, the new frontier is in the information age and in thinking law as information.

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

The COVID-19 pandemic prompted a nudge for public–private cooperation in healthcare to rapidly cope with limited resource. However, Vietnam’s historical reliance on a public healthcare system, combined with a traditional emphasis on socialization in the Polanyian sense, hindered the swift integration of the private sector. This research investigates path dependency in Vietnam’s public health sector, using theories including path dependency, Karl Polanyi’s double movement with legal analysis method to analyze the interplay of historical decisions, and socialist (...) policies in healthcare. Recognizing these institutional and market governance flaws, a deeper understanding of the role of law becomes vital in crafting strategies for a more resilient and sustainable healthcare system in Vietnam. In this article, Ho Chi Minh City is chosen as a case study due to its notable mix of public–private healthcare facilities and its status as a leading area in infection cases during the third COVID-19 wave. The article suggests that there should be a change in the way public and private sectors work together, one that is more in line with market-driven solutions which requires solid legal framework for cooperation beyond merely mobilizing resources. (shrink)

Kevin Yuill goes straight to the heart of a difficult issue. Critical of both sides of the discussion, this book presents an up-to-date analysis of the direction discussion is taking, showing that atheists, libertarians, those favouring abortion rights and stem-cell research should stand beside their religious compatriots in opposing legalization of assisted suicide. The author shows that the real issue behind the debate is not euthanasia but suicide. Rather than focusing on tragic cases, he indicates the real damage that (...) will be done if we affirm the suicidal wishes of even a small segment of the population. Analyzing the movement for the right to die in historical terms, Yuill shows that, though many proponents of a change in the law believe they are rationalist heirs of such thinkers as John Stuart Mill, legalizing assisted suicide will reduce privacy and freedom. Finally, Yuill suggests a radical alternative to legalization of assisted suicide that would embrace both the cause of freedom and the anxieties of many about securing good deaths. (shrink)

In the last years of its history, the Ukrainian ethnic group faced numerous external and internal challenges, which, to a large extent, were the result of its previous genesis and profound transformations in public consciousness. At the same time, one of the central stereotypes of the domestic political and legal mentality is the idea of truth and justice as a basic social ideal and the basis of the legal order. Analysis of research and publications. The problem of (...) mentality and the formation of behavioral stereotypes has been of interest to domestic and foreign scientists for a long time. The concept of «mentality» is most widespread in the writings of the French historical school «Annals». The scientific work of M. Blok, F. Braudel, M. Vovel, J. Le Hoff, J. Lefebvre, L. Fevre, R. Mandr and other scientists reveals the content of mentality and its structures, as well as the peculiarities of their influence on everyday life and activities of individuals who lived in different historical eras. The purpose and objectives of the article. In this article, the authors aim to analyze the idea of truth-justice as a tool for transforming the legal mentality of the Ukrainian ethnic group and to show its influence on the content of its behavioral stereotypes. Research methodology. The methodology of this research has a complex nature and is based on a socio-philosophical and philosophical-legal analysis of the behavioral guidelines of Ukrainians in the field of legal understanding. The results. The social ideology, developed on the basis of ancient social ideas and stereotypes of the national legal mentality, should become a tool for correcting such destructive phenomena in the state-building discourse as legal nihilism, anarchism, civic passivity, corruption, nepotism, etc. At the same time, the concepts of truth-justice, will-freedom and fraternity-equality are key in Ukrainian legal culture. Discussion. The interpretation of this idea in scientific opinion is not unambiguous. This idea clearly manifests itself in the context of the opposition between Truth and Evil in the national culture. Truth is inseparable from human existence and daily activities. The idea of truth is closely related to the idea of justice, which, according to many researchers, is a later, more rational and clearly defined phenomenon derived from truth. Justice as a socio-philosophical phenomenon is intended to act as a kind of moral measure of relations between individuals in society. It is considered as an authoritative criterion for establishing the correspondence between the nature of human activity and its assessment by the social community. Conclusions. Destructive behavioral stereotypes of the Ukrainian ethnic group that were formed, among other things, under the influence of factors of stressogenesis can be corrected with the help of the legal ideology of state building, which should be based on the content of the idea of truth and justice. The developed ideology should be based on the most stable constructive guidelines of the national legal mentality, organically complementing and ideologically justifying them. (shrink)