We are all familiar with the old adage that hard cases make for bad law. This symposium riffs off that idea to inquire whether soft law can make for ethical lawyering? To interrogate this q...

Los elementos básicos sobre los que se asienta esta contribución son; Por un lado, el reconocimiento de las características básicas de los instrumentos de soft law y la apreciación de su desnaturalización. Y, por otro lado, el análisis del fenómeno expansivo del Derecho penal y su vinculación con la globalización y la sociedad del riesgo. Su análisis conjunto me permitirán determinar la efectiva incidencia del soft law en la expansión del Derecho penal, a la luz de lo sucedido (...) en el caso del autoblanqueo de capitales, que aunado a la tipificación de las conductas de utilizar y poseer, y siendo considerado como delito previo el fraude fiscal genera importantes quiebras en uno de los principios más básicos y elementales del Derecho penal del Estado de Derecho, esto es, el principio non bis in idem. (shrink)

Desde hace algunos años se ha adoptado el término “soft law” para hacer referencia a ciertas producciones normativas que, aun sin participar de la fuerza vinculante del derecho, se les atribuye una relevancia jurídica. El objetivo de esta contribución es el de discernir en qué consiste esta relevancia jurídica y cómo puede ser mejor comprendida en atención a la dimensión funcional de las producciones normativas. Para ello, tras apuntar los distintos sentidos en los que se puede emplear la expresión (...) “relevancia jurídica” (referencial, funcional e instrumental), se presta atención a la atribución al soft law de funciones jurídicas, con particular referencia a las funciones presentes en la intención de uso de las producciones jurídicas, que se clasifican en prospectivas (prácticas/deónticas y predictivas) y retrospectivas (justificativas). Es el uso justificativo del soft law, como reconocimiento de que su empleo es apto para probar la corrección o conformidad al derecho de decisiones jurídicas, lo que permite explicar la particular relevancia jurídica que se le atribuye. Finalmente se argumenta cómo este tipo de uso justificativo aparece fundamentalmente en contextos en los que la decisión jurídica se ha de tomar dentro de ámbitos de discrecionalidad, tanto propia como impropia. Sin embargo, sólo cuando trata de justificar una decisión, dentro de un ámbito de discrecionalidad de este último tipo, puede hablarse de relevancia jurídica del soft law en sentido estricto. (shrink)

This book features essays that investigate the nature of legal validity from the point of view of different traditions and disciplines. Validity is a fascinating and elusive characteristic of law that in itself deserves to be explored, but further investigation is made more acute and necessary by the production, nowadays, of soft law products of regulation, such as declarations, self-regulatory codes, and standardization norms. These types of rules may not exhibit the characteristics of formal law, and may lack full (...) formal validity but yet may have a very real impact on people's lives. The essays focus on the structural properties of hard and soft legal phenomena and the basis of their validity. Some propose to redefine validity: to allow for multiple concepts instead of one and/or to allow for a gradual concept of validity. Others seek to analyze the new situation by linking it to familiar historical debates and well-established theories of law. In addition, coverage looks at the functions of validity itself. The discussion considers both international law as well as domestic law arrangements. What does it mean to say that something is valid? Should we discard validity as the determining aspect of law? If so, what does this mean for our concept of law? Should we differentiate between kinds of validity? Or, can we say that rules can be "more" or "less" valid? After reading this book, practitioners, scholars and students will have a nuanced understanding of these questions and more. Chapter 6 is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com. (shrink)

Do hard law international organizations use jurisprudence differently than soft law ones? Precedent can be asset or an encumbrance to international organizations and their members, depending on their aims and on the policy area. Linking current decisions to previously-agreed ones helps to increase cohesion, facilitate consensus among members, and borrow authority – benefits that might be more necessary for some organizations than for others. To compare whether the features of norm-producing organizations correlate with their preference for jurisprudence, we compare (...) two organs from the United Nations system: the Security Council, which produces binding decisions, and the General Assembly, which delivers soft law resolutions. We explore the citation networks formed by the approximately 20,400 resolutions adopted by each organ between 1946 and 2019 to test their differences with regards to the dynamics of citation formation, concentration of citations, and timing. Descriptive results reveal the main periods of jurisprudential activity by the Security Council and the General Assembly, but find no sizeable difference in their overall rate of precedent usage. We apply the Citation Exponential Random Graph Model (cERGM) to test for network determinants of citations and find additional similarities on transitivity and homophily, but also variations regarding preferential attachment. (shrink)

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be (...) a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful. (shrink)

Nanotechnology has revolutionized various industries and has become a notable catalyst for economic growth. The emerging issues of human health and safety associated with nanotechnology development have raised regulatory concerns worldwide. In occupational settings, the same novel characteristics of nanomaterials that are utilized for innovation may also be the source of toxins with adverse health effects for workers. The existing regulatory framework may function effectively to regulate chemical substances in their conventional forms but may not be adequate with regard to (...) the specific issues of nanoform substances. A foundation of knowledge concerning properties of nanomaterials, and risk management approaches for these materials have been established, but conclusive results remain elusive. It is difficult for lawmakers to regulate nanotechnology-related activities effectively if conventional regulatory mechanisms are applied. The present article analyses in a country study the adequacy of existing Malaysian occupational safety and health law with regard to the specific issues presented by nanotechnology. The applicable regulatory approaches are examined to justify the adoption of soft law instruments as regulatory mechanisms for nanotechnology. A number of soft law best practices are briefly discussed as a basis to recommend practical solutions to close the existing regulatory gap. (shrink)

This discussion offers a theoretical framework towards the discovery and amalgamation of conceptions within hard labor law and soft law initiatives which may spring from deliberately designed public-private initiatives as well as spontaneous market-driven responses. A case in defense of soft law is made for Malaysia on the basis of political realism. Agents of soft law initiatives are evaluated with a focus on public and private codes. I argue that for Malaysia, the stage is being set for (...) divergent regulatory approaches to labor, with differing consequences and outcomes. Some of these outcomes, as will be illustrated, may not be consciously designed but are likely to occur spontaneously. The focus of the discussion will be on the changing nature of labor norms in individual employment law, the advent of human rights reasoning and the interdependence of the organic forces in a particular jurisdiction that drive the labor agenda. The discussion concludes with an argument in praise of soft law as a viable agent for driving change in hard labor law, whilst maintaining its soft law character, thus contributing to the varieties of hybrid labor regulation. (shrink)

The article examines the record of compliance with the UN Committee against Torture’s decisions in individual complaints cases. Theoretically, I expect that compliance will be the outcome of a combination of normative and rationalist factors: States committed to human rights protection will comply even in the absence of enforcement but only as long as compliance costs remain relatively low. Using a data set covering all adverse decisions issued until 2018 and information on their compliance status, I employ fuzzy-set qualitative comparative (...) analysis to identify necessary and sufficient conditions for the outcomes of compliance and noncompliance. The analysis reveals that the conditions tested—liberal democracy, nonuse of political terror, violation type, and strong civil society—are in part individually (near-)necessary and jointly sufficient for compliance, while the presence of their complements is consistent with noncompliance. The Committee against Torture thus appears to be able to elicit (some) state compliance with its decisions, if mostly only with respect to certain kinds of states and select types of violations. (shrink)

The precautionary principle in public decision making concerns situations where following an assessment of the available scientific information, there are reasonable grounds for concern for the possibility of adverse effects on the environment or human health, but scientific uncertainty persists. In such cases provisional risk management measures may be adopted, without having to wait until the reality and seriousness of those adverse effects become fully apparent. This is the definition of the precautionary principle as operationalized under EU law. The precautionary (...) principle is a deliberative principle. Its application involves deliberation on a range of normative dimensions which need to be taken into account while making the principle operational in the public policy context. Under EU law, any risk management measures to be adopted while implementing the precautionary principle, have to be proportionate to ensure the chosen high level of protection in the European Community. This articlewill illustrate the established practice concerning the release of genetically modified organisms into the environment and how the principle is implemented under hard law. The article also provides an outlook on what this may imply for the relative new case of nanotechnology and the use of precautionary principle within the context of soft law (use of codes of conduct). (shrink)

The European Union is making increased efforts to find simpler and more effective ways to function adequately in the eyes of its citizens by using ‘soft law’ instruments such as recommendations. Although they have no legally binding force, recommendations have practical and legal effects occurring partly due to their normative content in which a course of action is prescribed and further supported by arguments intended to persuade the addressees of a political position. Although recommendations function as persuasive instruments due (...) to their argumentation, the characteristics of argumentation and how it is employed to convince the addressee to comply with certain measures have not been investigated at all. The main goal of the paper is to explain how arguments are used by the European Commission when recommending Member States to follow a new course of action. First, we will unravel the justificatory reasons employed by the Commission in order to make Member States comply with new measures and we will show how these reasons are combined into an argumentative pattern : 1–23, 2016; J Argum Context 6: 3–26, 2017). This pattern basically prescribes a course of action to Member States, which is further supported by arguments in which the necessity and advantages of following the proposed course of action are justified. Second, we will explain how and why the way in which the arguments are combined in this complex pattern could be potentially persuasive for the Member States despite the legally non-binding character of recommendations. We will show that the European Commission tries to persuade the Member States to take new measures by evading the burden of proof imposed by the legislative framework. At a more specific level of analysis, we will delve into the implicit premises in the argumentation, which enable us to identify cases of evasion of the burden of proof due to the Commission’s use of implicit starting points which might not be accepted by the Member States. (shrink)

Much of the legal literature discusses regulation and regulatory forms with a seemingly implicit assumption that "those to be influenced" are inherently self-interested and thus motivated to comply with legal structures only when there are sufficient external incentives to do so. This view of the person is inconsistent with recent perspectives in the field of psychology. A law and morality perspective, coupled with insights from the field of psychology, asserts that influence, compliance, and motivation are far more complex than this (...) legal literature would suggest. In this Article, we map the varying influence structures, motives, psychological needs, emotional mechanisms, and levels of moral reasoning that various forms of regulation, from hard law to soft law, might appeal to. We provide examples from global banking and one soft law initiative, the Equator Principles, to illustrate reasons psychology would suggest why soft law may be more effective in some circumstances in influencing behavior within the firm than hard law, while recognizing important limits to such influence. (shrink)

Labour and employment law no longer has a monopoly on regulating labour relations and is facing a crisis as its effectiveness is questioned. Codes of conduct adopted by companies to recognise their social responsibility for the global supply chain are instruments that can usefully complement labour and employment law. The aim of this paper is to analyse in depth the legal nature of codes of conduct and their impact on labour and employment law. Will the use of codes of conduct (...) reinforce the crisis of labour and employment law in the era of globalisation or will these codes be part of a solution to this crisis? Do we have to consider codes of conduct as competitors to labour and employment law or as an opportunity for rethinking the way that labour and employment law norms should be produced and applied? (shrink)

This volume is issued by one of Max Planck Society’s 83 research institutes, the Max Planck Institute for Comparative Public Law and International Law, a strong reference on i...

How one thinks about the relationship between individual autonomy (sometimes referred to as individual willpower or human agency) and technology can influence the way legal thinkers develop policy at the intersection of law and technology. Perspectives that fall toward the `machines control us' end of the spectrum may support more interventionist legal policies while those who identify more closely with the `we are in charge of machines' position may refuse to interfere with technological developments. The concept of soft determinism (...) charts a middle-ground between these two positions and could assist in the formulation of a general theory of the relationship between law and technology. Soft determinism maintains that technological developments are embedded in social, political, economic and other processes, and serve to guide and, potentially, configure future actions and relationships with these technologies, their users, and their subjects: while past technology develops shape the present, individuals and groups can still exert control over these technological developments. (shrink)

The paper examines the realignment of the legal sources in an information society, by considering first of all the differences with the previous system of sources, dubbed as the “Westphalian model”. The current system is tripartite, rather than bipartite, for the sources of transnational law should be added to the traditional dichotomy between national and international law. In addition, the system is dualistic, rather than monistic, because the tools of legal constructivism, such as codes or statutes, have to be complemented (...) with the rules of customary law and contracts. In light of the canonical version of the law as a set of commands enforced through the threat of physical sanctions, however, two further novelties must be stressed, namely the soft law-tools of governance as a source of the system and the aim to embed normative constraints into technology, in order to enforce the law through the use of filtering systems, self-enforcing technologies, etc. This latter approach impacts on functions and requirements of the system, by transferring the normative side of the law from the traditional “ought to” of legal commands to what actually is on the basis of automatic techniques, thus affecting the very notion of source. The overall aim of the paper is to show that rearrangements of the legal sources are intertwined with redistributions of power and hence, a normative standpoint is needed, so as to determine whether scholars can obtain the solution that best justifies the integrity of the law before its hard cases, or the answer is a reasonable compromise between many conflicting interests. (shrink)

In this study, I examine the effectiveness of a national board gender diversity disclosure requirement, which is, arguably, on the “soft” end of the continuum of boardroom interventions. Using a panel dataset of 1847 hand-collected corporate disclosures from 2015 to 2018, I perform a post-event, historical trend analysis of the efficacy of Canada's 2014 intervention. I find evidence of real progress in the 4 years following intervention against several benchmarks. Specifically, improvements in critical mass are documented, with the proportion (...) of boards with three of more women reaching 18.8% in 2018. Tokenism remains an issue with very little change in the number of Canadian boards with only one woman. Further analyses using a sorting methodology and panel regression analysis reveal that progress toward board gender diversity is achieved by those with board gender targets, board seat renewal policies, and written board diversity policies. In addition, I find that larger companies achieve greater progress and that progress is clustered by industry. (shrink)

In the literature on free will, fatalism, and determinism, a distinction is commonly made between temporally intrinsic (‘hard’) and temporally relational (‘soft’) facts at times; determinism, for instance, is the thesis that the temporally intrinsic state of the world at some given past time, together with the laws, entails a unique future (relative to that time). Further, it is commonly supposed by incompatibilists that only the ‘hard facts’ about the past are fixed and beyond our control, whereas the ‘ (...) class='Hi'>soft facts’ about the past needn’t be. A substantial literature arose in connection with this distinction, though no consensus emerged as to the proper way to analyze it. It is time, I believe, to revisit these issues. The central claim of this paper is that the attempts to analyze the hard/soft fact distinction got off on fundamentally the wrong track. The crucial feature of soft facts is that they (in some sense) depend on the future. Following recent work on the notion of dependence, however, I argue that the literature on the soft/hard distinction has failed to capture the sense of dependence at stake. This is because such attempts have tried to capture softness in terms of purely modal notions like entailment and necessitation. As I hope to show, however, such notions cannot capture the sort of asymmetrical dependence relevant to soft facthood. Arguing for this claim is the first goal of this paper. My second goal is to gesture towards what an adequate account of soft facthood will really look like. (shrink)

Just war theory focuses primarily on bodily harm, such as killing, maiming, and torture, while other harms are often largely overlooked. At the same time, contemporary international conflicts increasingly involve the use of unarmed tactics, employing 'softer' alternatives or supplements to kinetic power that have not been sufficiently addressed by the ethics of war or international law. Soft war tactics include cyber-warfare and economic sanctions, media warfare, and propaganda, as well as non-violent resistance as it plays out in civil (...) disobedience, boycotts, and 'lawfare.' While the just war tradition has much to say about 'hard' war - bullets, bombs, and bayonets - it is virtually silent on the subject of 'soft' war. Soft War: The Ethics of Unarmed Conflict illuminates this neglected aspect of international conflict. (shrink)

Contract theories may be a useful analytical tool for understanding and explaining contract, as well as for facilitating orientation in a complex and often fragmented legal regulation. The article presents main understandings of contract in various European jurisdictions: contract as free assumption of obligation, contract as a bargain based on the idea of consideration, contract as free assumption of obligation based on sufficient causa. The article inquires as to how universal those theories are, what are the recent trends in the (...) development of European contract law, what philosophy of contract underlies the soft law instruments, such as UNIDROIT Principles of International Commercial Contracts or Principles of European Contract Law (PECL), what is the stance of the Draft Common Frame of Reference (DCFR) in regard to the concept of contract. Under the law of Lithuania the definition of contract comprises elements found in several European countries, but it is argued that the new Lithuanian Civil Code has not received any model in its pure form. However it seems that the prevailing view understands contract as juridical act, as freely assumed obligation and meeting of parties’ intentions with the aim to create legal effects. Following the position of soft law instruments in regard to the elements of the contract, Lithuanian law (at least in its statutory form) does not have any explicit additional requirements, such as consideration or causa. (shrink)

What is the relation between the ethics, the law, and the governance of the digital? In this article I articulate and defend what I consider the most reasonable answer.

This book contains a collection of treaty documents and soft law on health care rights and health ethics which are used in health law training programs. Regional documents and explanatory reports on health care rights, which are derived from international human rights law, provide a way of "unwrapping" government obligations in health care, making rights more specific, accessible, and (judicially) accountable. In addition, soft law declarations and medical ethics contribute to understanding the moral meaning of human rights in (...) health care. As such, the principles and standards provide practical guidance for States when dealing with equal access to health care services, the rights of patients, biomedical research, organ donations and transplants, genetics, and public health. The book covers the basic documents, while general comments and explanatory reports amplify the principles embodied in the human rights treaties. The authoritative interpretations clarify a 'European approach' on a State's obligations concerning health care rights and ethics. (shrink)

Irregularity may occur on the earth’s surface in the form of mountains due to the imperfection of the earth’s crust. To explore the influence of horizontally polarized shear waves on mountains, we considered the fluid-saturated porous medium over an orthotropic semi-infinite medium with rigid and soft mountain surfaces for wave propagation. The mountain surface is defined mathematically as a periodic function of the time domain. The physical interpretation of materials’ structure has been explained in rectangular Cartesian coordinate system originated (...) at the contact interface of layer and half-space. The displacement of the mountains has been derived by solving energy equations analytically. The influence of rigid and soft mountain surfaces on the phase velocity of shear waves has been demonstrated graphically. (shrink)

There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. Therefore, this article deals (...) with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (shrink)

Susan Sauvé Meyer presents a new translation of Plato's Laws, 1 and 2. In these opening books of Plato's last work, a Cretan, a Spartan, and an Athenian discuss legislative theory, moral psychology, and the criteria for evaluating art. The interlocutors compare the relative merits of different nomoi (laws, practices, institutions), in particular, the communal meals (sussitia) practiced in Sparta and Crete and the paradigmatically Athenian institution of the drinking party (sumposion). They agree that the legislator's goal is to inculcate (...) virtue in the citizens, but they disagree about what the virtues are, and what institutions are required to inculcate them. The Spartan and Cretan, who value military strength in a city and courage in its citizens, see no value in drinking parties, which they take to encourage softness and susceptibility to pleasure. The Athenian insists that drinking parties train citizens in moderation, just as military exercises train citizens in courage. He defends this paradoxical thesis by offering a moral psychology and theory of virtue (rather different from that of the Republic but highly evocative of Aristotle's Ethics), along with a theory of education in which choral song and dance play an important role. A detailed discussion of the criteria for evaluating works of art rounds out the discussion, and here too the reader will find a discussion very different from the treatment of art in the Republic. Meyer's fluent and readable translation achieves a high standard of fidelity to the original Greek. The commentary lays bare the structure of the argumentation, illuminates the philosophical issues, and explains difficult passages, making this complex and intricate work accessible to students and scholars alike. (shrink)

I discuss some aspects of the epistemological distinction between laws of nature and accidental uniformities. In order that the exposition be self-contained I briefly provide a taxonomy proposed in another work for statements that appear in a scientific theory. Once this taxonomy has been presented I attempt to prove two very different types of accidental uniformities: hard and soft. The distinction is fundamental because the latter have frequently been confused with laws of nature. I try to justify why I (...) believe that these statements are accidental uniformities and not laws of nature. (shrink)

The small- and medium-sized tourism and hospitality enterprises are the main forms of enterprises in Macao. This study put forward a new framework of survival and sustainable development from the perspective of competitive advantage and regional soft environment, which significantly holds theoretical and practical research value. The study obtained cross-sectional data of 317 small- and medium-sized tourism and hospitality enterprises in Macao through a large-scale questionnaire survey. This article used exploratory factor analysis and confirmatory factor analysis to test the (...) reliability and validity of each factor system and its measurement scale. The variance analysis is used to judge the differences between the elements. The regression analysis is used to verify the hypothesis of a causal relationship between factors. The structural equation analysis is used to fit the model and make necessary amendments. The results reveal that the government service environment has a significant positive impact on the ability of an entrepreneur. In addition, the regional soft environment significantly impacts the competitive advantage of small- and medium-sized tourism and hospitality enterprises in Macao. Contrary, the impact of laws of Macao on the acquisition of financial resources and the promotion of entrepreneur ability and innovation ability is found insignificant. In conclusion, the results showed that market of Macao lacks venture investors where enterprises cannot obtain funds through angel financing or risk financing. (shrink)

The Faculty of Law at Masaryk University in Brno, the Czech Re- public, offers several fields of studies, one of them being the three-year Bachelor’s degree programme of International Trade Law. This programme includes two semesters of English for specific purposes which the students take in their first year of studies. However, as the programme is offered as a part time study, there are only 10 lessons of English taught within two days per semester. Preparing a course which would develop (...) the students’ language abilities and skills in the international trade law environment appears to be rather challenging under such conditions. In the paper I would like to share the ideas and experience from re- designing the syllabus for this course of English for international trade law. I describe the process from the original syllabus to a new one in which the teaching situation and students’ needs are taken into account. The course in- tends to include both product and process oriented goals and helps to improve general professional needs. In order to cover the field specific vocabulary, language practice and soft skills development within the above mentioned limited time frame, the students need to work both before and after the classes. The course is going to be piloted this year and we expect further modifications after its evaluation. (shrink)

This article compares Hendrik de Man's neo-Marxist approach with that of the Hungarian poet Attila József. It suggests that de Man's “refinement” of Marxism amounts to foregrounding psychological aspects; he tends to replace “hard,” political or economic elements of Marxist and neo-Marxist theories with “soft,” psychological elements. For him Intellectual Socialism stands in opposition to Labor Socialism. This view may have challenged the synthesis-makers, including József, who sees himself as a “proletarian poet”: in his poetry he formulates the optimal (...) relationship between the new intelligentsia and the proletariat, addressing the philosophical dilemmas raised by de Man. Whereas for de Man, Marx and philosophical Marxism are both of the past, demanding a mechanical interpretation, for József, Marxism—approached with no intention at revision—is a valid theory that calls for certain adjustments. His aspiration, even if unintended, is a correction and criticism of de Man's superficial categorization. Whereas de Man finds in Marxism the deterministic logic of eighteenth-century natural science, which analogy justifies its psychological refinement, for József the notion of law is always bound to society and history. (shrink)

Today, after the family, the school is the first institution in which children experience the implementation of social rules and the behaviors that follow from them. It is useful, therefore, to insert paths that favor the consolidation of a system made up of rules, inspired by the principles of transparency, fairness and solidarity, which can be the first and most effective lesson of democratic legality. In this perspective, teaching activities can appropriately refer to the programmatic contents of the disciplines which, (...) not only with regard specifically to civic education and law, but also with regard to other cultural areas, are bearers of explicit information and formative experiences. Particular attention is paid today to the planning of “Percorsi per le Competenze Trasversali e l’Orientamento” [Paths for Soft Skills and Guidance] (PCTO), which will also have an implicit educational value, that consisting in showing, through field experiences, the convergence of multiple cultural interests towards the purpose of education to legality. (shrink)

The paper deals with the governance of Unmanned Aircraft Systems in European law. Three different kinds of balance have been struck between multiple regulatory systems, in accordance with the sector of the governance of UAS which is taken into account. The first model regards the field of civil aviation law and its European Union ’s regulation: the model looks like a traditional mix of top-down regulation and soft law. The second model concerns the EU general data protection law, the (...) GDPR, which has set up a co-regulatory framework summed up with the principle of accountability also, but not only, in the field of drones. The third model of governance has been adopted by the EU through methods of legal experimentation and coordination mechanisms for UAS. The overall aim of the paper is to elucidate the ways in which such three models interact, insisting on differences and similarities with other technologies, and further legal systems. (shrink)

On 4 December 2006, during discussions on the Corporate Manslaughter and Corporate Homicide Bill, Andrew Dismore, Member of Parliament and then Chair of the Joint Committee on Human Rights, said, ‘Organisations can kill people … but it is the actions and omissions of people in organisations that cumulatively cause death’. However, the corporate entity is a vehicle for the communal actions of those who guide the business activities. Attempting to seek out persons or people that are solely responsible for deaths (...) and violations of human rights caused by companies is fruitless. The entity is a vehicle for those actions, it possesses its own, often deep, pockets of finance and resources, and it has a public image. It is more useful to punish the corporate entity, in instances where the corporate behaviour has led to death and human rights abuses, as it is in seeking out individual defendants. Soft law options have not brought about a sufficient reduction in instances of deaths caused by corporate behaviour across jurisdictional borders. This article will argue that the time has now come to establish an international hard law on corporate killing, and for states to ensure that there is a viable path towards a redress for victims and their families along with adopting a duty to assist the victim or their family to pursue redress to ensure a fair balance of power against transnational companies. (shrink)

In many papers dealing with the stylistic features of legal texts, metaphor is highlighted as a stylistic figure often used in the language of law. On a daily basis we can witness the frequent use of metaphoric collocations like soft laws, hard laws, silent partner, hedge funds, etc. In this paper, the author analyses the use of denotations for colours as constituent parts of metaphoric collocations in the language of law. The analysis is conducted by using a comparative approach (...) to examples extracted by means of computer technology from international bills and conventions available online. In the main part of the paper, examples are classified by using a colour denotation as the main criterion for the classification. After that, the examples are compared with corresponding expressions used in German and Croatian. Taking into account the main principle of the Skopos translation theory that differences between cultures strongly influence the translation process, the hypothesis of this research is that in many cases there will be no lexical equivalence between collocations with colour denotation in three languages. Due to the fact that international bills and conventions build the corpus of the research, and that the English language has become the lingua franca of international communication, it can be expected that some metaphoric terms and collocations would be literally translated from English. Conclusions drawn from the comparative analysis of legal collocations containing denotations for colours can be interesting to lawyers and LSP teachers in the field of law. In this sense, results of the research can contribute to motivational aspects of teaching Legal English and Legal German. (shrink)

Soft regulatory measures are often promoted as an alternative for existing regulatory regimes for nanotechnologies. The call for new regulatory approaches stems from several challenges that traditional approaches have difficulties dealing with. These challenges relate to general problems of governability, tensions between public interests, but also (and maybe particularly) to almost complete lack of certainty about the implications of nanotechnologies. At the same time, the field of nanotechnology can be characterized by a high level of diversity. In this paper, (...) we discuss and compare two models for framing public policy in relation to technology regulation: the first is a deliberative model based on foresight knowledge and the second the wide reflective equilibrium model, developed by political philosopher John Rawls. In both models, the aim is to find consensus on (a framework for) policy measures and regulation. On the basis of a critical discussion of the strengths and weaknesses of both models, some tentative conclusions are drawn for effective policy making and implementation based on soft law. (shrink)

The aim of this article is to critically reflect on the Polish transformation taking place in the interpretation of business law in the form of legal clarifications that can be qualified as a soft law guidance. The article attempts to address the following questions: does the new Polish legal framework offer really novel approaches to the interpretation of business law and/or its tools? What are the peculiarities that characterize the new instrument for the interpretation of business law in the (...) form of legal clarifications? What are the pros and cons of legal clarifications? What is the potential practical importance of the introduced interpretation tool, in particular in the context of certain previously existing tools for the interpretation of legal texts? To this end, first, the article sheds light into types of the interpretation of legal texts as well as soft law guidance. Second, it analyses the distinctive features of legal clarifications. Third, it contains the concise comparison of legal clarifications to certain previously existing instruments. In the last part before the conclusion, the topic required an attempt at an assessment. The point of the analysis in this article was both descriptive and normative. (shrink)

The contribution describes the legal phenomenon as a playing field characterized by a progressive regression of the law, understood as a sovereign will from top to bottom, both in the vision of formalist legal positivisms in continental Europe and in realist terms, in the United States. Soft law represents the main strategy to subordinate the law to the interests of the economy, elasticizing environmental law, making it favorable to the market, reducing ecology to the simplistic metric of CO2 emissions. (...) The consequence is a retreat of the statist vertical normativity of law which is not replaced by a de facto power granted to those who control the technology, built by design to close spaces for pluralism and democratic action, in the interest of surveillance and concentrated power in private and government oligopolies. The author concludes by advocating the urgency for genuinely innovative categories, particularly in the legal education, such as the commons, capable of including sustainability into a “new ecological jurisprudence committed to inclusion and solidarity rather than exclusion and struggle”. (shrink)

By any measure, Oliver Wendell Holmes, Jr., led a full and remarkable life. He was tall and exceptionally attractive, especially as he aged, with piercing eyes, a shock of white hair, and prominent moustache. He was the son of a famous father, a thrice-wounded veteran of the Civil War, a Harvard-educated member of Brahmin Boston, the acquaintance of Longfellow, Lowell, and Emerson, and for a time a close friend of William James. He wrote one of the classic works of American (...) legal scholarship, The Common Law, and he served with distinction on the Supreme Court of the United States. He was actively involved in the Court's work into his nineties. In Justice Oliver Wendell Holmes, G. Edward White, the acclaimed biographer of Earl Warren and one of America's most esteemed legal scholars, provides a rounded portrait of this remarkable jurist. We see Holmes's early life in Boston and at Harvard, his ambivalent relationship with his father, and his harrowing service during the Civil War. White examines Holmes's curious, childless marriage and he includes new information on Holmes's relationship with Clare Castletown. White not only provides a vivid portrait of Holmes's life, but examines in depth the inner life and thought of this preeminent legal figure. There is a full chapter devoted to The Common Law, for instance, and throughout the book, there is astute commentary on Holmes's legal writings. Indeed, White reveals that some of the themes that have dominated 20th-century American jurisprudence--including protection for free speech and the belief that "judges make the law"--originated in Holmes's work. Perhaps most important, White suggests that understanding Holmes's life is crucial to understanding his work, and he continually stresses the connections between Holmes's legal career and his personal life. For instance, his desire to distinguish himself from his father and from the "soft" literary culture of his father's generation drove him to legal scholarship of a particularly demanding kind. White's biography of Earl Warren was hailed by Anthony Lewis on the cover of The New York Times Book Review as "serious and fascinating," and The Los Angeles Times noted that "White has gone beyond the labels and given us the man." In Justice Oliver Wendell Holmes, White has produced an equally serious and fascinating biography, one that again goes beyond the labels and gives us the man himself. (shrink)

I insist that I was able to raise my hand, and I acknowledge that a law would have been broken had I done so, but I deny that I am therefore able to break a law. To uphold my instance of soft determinism, I need not claim any incredible powers. To uphold the compatibilism that I actually believe, I need not claim that such powers are even possible. My incompatibilist opponent is a creature of fiction, but he has his (...) prototypes in real life. He is modeled partly after Peter van Inwagen and partly on myself when I first worried about van Inwagen's argument against compatibilism. (shrink)

Selective reduction and abortion both involve the termination of fetal life, but they are classified by different designations to underscore the notion that they are regarded as fundamentally different medical procedures: the two are performed using distinct techniques by different types of physicians, upon women under very different circumstances, in order to further dramatically different objectives. Hence, the two procedures appear to call for a distinct moral calculus, and they have traditionally evoked contradictory reactions from society. This essay posits that (...) despite their different appellations, selective reduction and abortion are essentially equivalent. (shrink)

The “rhetorical incorporation of human rights terminology” into domestic law is the central concern of this article. Over the last 20 years or so, countries have faced international pressure to conform to human rights standards in order to enjoy legitimacy. However, there is a huge gap between what is legalized as “human rights” in domestic laws and what is set forth as “human rights” in international human rights instruments. Based on this presupposition that a proper incorporation of human rights on (...) the books is a prerequisite for putting them into practice, this study by adopting a Systems Thinking approach seeks to show that law as a soft system on the books is more than the name and number of rights. It is a complex whole whose function depends on not only the name and number of rights but also different features of rights and the relationships between them. To this end, law is conceived as a system of rights that has five major features including the “frame of reference,” “scope of rights,” “orientation of rights,” “enforceability of rights,” and “realizability of rights.” The way of codification of human rights with respect to each of these features makes a big difference in implementing human rights in practice. To develop a heuristic devise for evaluating the situation of human rights in current legal systems, the conceptual space of law as a system of rights is depicted in a matrix called a “Rights Fabric Matrix.”. (shrink)