Controversy swept the U.K. in January of 2000 over public disclosure of the fact that a Scottish surgeon named Robert Smith had amputated the limbs of two able-bodied individuals who reportedly suffered from a condition known as apotemnophilia. The patients, both of whom had sought and consented to the surgery, claimed they had desperately desired for years to live as amputees and had been unable, despite considerable efforts, to reconcile themselves psychologically to living with the bodies with which they were (...) born. Both surgeries were successful, and both patients, who had undergone psychiatric evaluation prior to the amputations, subsequently reported having no regrets. In the wake of a wave of sensationalistic stories in the media, the hospital at which the surgeries had been performed, the Falkirk and District Royal Infirmary, banned any future surgeries of the kind. Outraged local politicians promptly announced their intention to pass laws banning the procedure outright. One member of Scottish Parliament declared the surgery obscene and asserted that the whole thing is repugnant and legislation needs to be brought in now to outlaw this. (shrink)

A UK doctor was recently acquitted of charges of reinstating a variety of female genital mutilation after delivering a child. In this paper, I contend that this incident reflects a broader confusion concerning the ethico-legal status of non-therapeutic genital surgeries for children and adults, which are not derivable from tenets of medical ethics, but rather violate them. I argue that medical professionals have an obligation to announce and address this confusion in order to motivate legislative reform, since the inconsistency of (...) the current law entrenches the underlying sexism and ethnocentrism upon which its sense depends. Without convincing arguments for condoning male circumcision and female cosmetic genital surgery and for treating adult women of colour as lacking the capacity to consent, the current legislation stands in need of urgent revision. (shrink)

Crises such as water quality, pollution, climate change, overfishing, biodiversity, energy, waste, and carbon sequestration mean that legislation protecting the marine environment is under intense pressure to be effective and to demonstrate positive results in a vast array of public and private spheres. Thus far, scholarship of EU marine environmental law has been focused primarily on (i) interaction with international agreements (ii) spatial/jurisdictional studies (iii) analysis of new laws, plans and programmes (iv) principles (e.g. good environmental status, precautionary approach, (...) polluter pays) (v) CJEU case analysis (vi) enforcement (vii) specific issues (plastics, litter…). However, over the years the mass constituted by the EU marine environment acquis has grown ever-larger, leading to risks of poor coordination, over-regulation in some areas and lack of regulation in others. By triangulating complementary investigatory methodologies, this study teases out systemic, diachronic and legilinguistic interlinkages—within and across key instruments as well as EU institutions, bodies and agencies. Our results provide avenues for policymakers nationally and at EU level to improve the legibility and coherence of marine environmental regulation—to the benefit of citizens and the wider body of stakeholders, and, ultimately, to benefit the marine world. (shrink)

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred (...) congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

The article discusses fascinating points of similarity and difference between Leibniz's Monadology and Heidegger's 'The Thing', two of the greatest short works in the history of philosophy. But the key point of intersection between them is not widely recognised: indirect causation.

The Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, first leaked to the public on 2 May 2022 and officially released on 24 June 2022, overturned Roe v. Wade and thereby determined that abortion is no longer a federally protected right under the Constitution. Instead, the decision gives individual states the right to regulate abortion. Since the Dobbs decision first leaked, our institution has received numerous requests for permanent contraception from individuals stating that their motivation to pursue permanent contraception (...) was influenced by the Dobbs decision and concerns about their reproductive autonomy. Discussions with patients seeking permanent contraception since the Supreme Court’s leaked decision have led us to ask ourselves, is legislative anxiety an indication for surgery? This article presents a case series consisting of a convenience sample of 17 young, nulliparous individuals who sought out permanent contraception in the six months following the leak of the Dobbs decision. Healthcare professionals often feel discomfort in offering permanent contraception to young and nulliparous individuals. Accordingly, we discuss pertinent legal issues, review relevant ethical considerations, and offer a framework for these discussions intended to empower the consulting healthcare professional to center the bodily autonomy of every patient regardless of age, parity, or indication for permanent contraception. (shrink)

We should now be able to come to some general conclusions about the main lines of Cuvier's development as a naturalist after his departure from Normandy. We have seen that Cuvier arrived in Paris aware of the importance of physiology in classification, yet without a fully worked out idea of how such an approach could organize a whole natural order. He was freshly receptive to the ideas of the new physiology developed by Xavier Bichat.Cuvier arrived in a Paris also torn (...) by many overlapping debates on the nature of classification, and in particular that between the natural and artificial systems. The very validity of the enterprise of classification was questioned in many quarters. Cuvier's achievement on his entry into the Parisian world of science was not simply to establish himself as a highly competent anatomist: far more important, he also began to use ideas from many different specialties to change completely the notion of what was involved in natural history.124 At the same time that he himself swung away from the guiding image of the field naturalist as the ideal of the specialty, he took ideas from the new physiology to answer questions about the order of the animal world, and from comparative anatomy to resurrect extinct creation — and to come to conclusions from that creation about the history of the forms of life and the manner of their succession. He showed himself able to alter the relationships between natural history and many other fields of study in a way that implied, rightly or wrongly, his own complete mastery over such a movement. Partly he was able to do this because the ideas he borrowed were not themselves logically articulated and thus could be easily adapted and refocused for many different specific purposes. The value of the heuristic possibilities inherent in the idea of life, for example, far outweighed its inability to generate full systems of classification. Cuvier also consistently refused to consider in science matters relating to the first causes of events. Freed from the consideration of first-order phenomena, he was able to use second-order explanations across a far wider field of applicability. Personal doubts about the validity of a theology that had used science in order to bolster its own claims were combined here with the strong influence of the Kantian critique of the limits of human reason.125Cuvier's characteristic mode of procedure was that of intellectual appropriation and a bold capacity for altering the relationships between different fields of knowledge, rather than, with the exception of taxonomy, the technique of expanding their subject matter. His claims to originality came, first, from this reappropriation and reorientation and, second, from the sheer scope of his work, which aimed at nothing less than the cataloging and classification of all animate objects.126 They rested also on his acute use of his assertion of a certain relationship with the past of his subject. Very often he would present this history in such a way as to obscure his own intellectual genealogy, and often too he would give differing accounts of the priority of use of an idea in order to distract attention from the questionable exactitude of his own claims to originality. Cuvier came to Paris at precisely the time when society and institutions were most profitably malleable for a newcomer; it was also a time when many scientific disciplines had reached a stage advanced in terms of their factual content, yet relatively inadequate in conceptual organization. They were ripe for takeover by large-scale organizing ideas such as the animal economy and the subordination of characteristics. Paleontology is a particularly good example of a specialty in this particular form of underdevelopment in 1795.Cuvier paid a high price for his initial success. His electic applications of large-scale organizing ideas tended to mean that little of his own work had complete coherence at all levels. Ideas, as we have seen, that proved capable of providing a complete reform of the larger groups of the animal kingdom were incapable of producing its detailed working-out in the taxonomy of smaller groups, which had to be supplied from observed analogical correlations. Further, his physiological approach to classification involved the breakdown of strict correspondence between organs and functions, which left the way open for workers such as Geoffroy St. Hilaire gradually to tilt the balance away from the study of the correlations of hierarchies of functions, and toward morphology as the basis of the order of nature. Cuvier's brilliant appropriations from physiology from the beginning, therefore, contained the seeds of conflict with Geoffroy.Cuvier's eclectic approach made it very nearly impossible for him to present a clear idea of the ways in which the life sciences could be said to be lawful. In spite of his efforts to assimilate them to the position of the physical sciences in this respect, he was forced in the end to accord only an ambiguous status as “laws” to observational correlations. From this area of failure came much of the attempt to give his own two laws — the correlation of parts and the subordination of characteristics — predictive qualities, particularly in relation to paleontological research.It is not surprising that Cuvier's title as the “legislator” of natural history should represent more a claim than a reality. How, then, was he able to emerge as the leading French naturalist of his day? First of all must be adduced the sheer scale of his undertakings. Then comes his expertise as a practical anatomist, and the range of different topics toward which he turned his interest. His collaborators cannot be given credit for his output nor, as we have seen, for slavish adherence to his ideas. Cuvier was able to successfully claim to have dominated the underdeveloped specialties, such as paleontology, and turned them into a major heuristic input into both geology and comparative anatomy; but in other fields, such as physiology, he appropriated concepts and encouraged research but made little impact on the field himself. His attempts in 1812 to head off, or neutralize and absorb the growth of morphological studies landed him in a dangerously rigid position, which despite his encouragement of the new physiological research under the Restoration made further elaboration of his own conceptual underpinnings almost impossible.Cuvier's authority in the scientific world would in any case have been great because of his substantive achievement in taxonomy, but the rest of his work had enough ambiguities and dislocations for it to need the support of his political and social power. Cuvier's detractors seized on a vital fragment of the truth when they accused him of finding the political dimension all-important: it obscured the disjunctions in his theories and at the same time gave him the authority to make new claims for the status of the observational sciences - and for their relations of power with their surrounding specialties. Cuvier's science both thrived on and was halted by the power games of intellectual appropriation, manipulation of the past to confirm the present, and continual claims for hegemony. (shrink)

The market for cosmetic surgery tourism is growing with an increase in people travelling abroad for cosmetic surgery. While the reasons for seeking cosmetic surgery abroad may vary the most common reason is financial, but does cheaper surgery abroad carry greater risks? We explore the risks of poorly regulated cosmetic surgery to society generally before discussing how harm might be magnified in the context of cosmetic tourism, where the demand for cheaper surgery drives the market and makes surgery accessible for (...) increasing numbers of people. This contributes to the normalisation of surgical enhancement, creating unhealthy cultural pressure to undergo invasive and risky procedures in the name of beauty. In addressing the harms of poorly regulated surgery, a number of organisations purport to provide a register of safe and ethical plastic surgeons, yet this arguably achieves little and in the absence of improved regulation the risks are likely to grow as the global market expands to meet demand. While the evidence suggests that global regulation is needed, the paper concludes that since a global regulatory response is unlikely, more robust domestic regulation may be the best approach. While domestic regulation may increase the drive towards foreign providers it may also have a symbolic effect which will reduce this drive by making people more aware of the dangers of surgery, both to society and individual physical wellbeing. (shrink)

Background Healthcare systems are increasingly struggling with resource constraints, given demographic changes, technological development, and citizen expectations. The aim of this article is to normatively analyze different suggestions regarding how publicly financed plastic surgery should be delineated in order to identify a well-considered, normative rationale. The scope of the article is to discuss general principles and not define specific conditions or domains of plastic surgery that should be treated within the publicly financed system. Methods This analysis uses a (...) reflective equilibrium approach, according to which considered normative judgements in one area should be logically and argumentatively coherent with considered normative judgements and background theories at large within a system. Results and conclusions In exploring functional versus non-function conditions, we argue that it is difficult to find a principled reason for an absolute priority of functional conditions over non-functional conditions. Nevertheless, functional conditions are relatively easier to establish objectively, and surgical intervention has a clear causal effect on treating a functional condition. Considering non-functional conditions that require plastic surgery [i.e., those related to appearance or symptomatic conditions ], we argue that the patient needs to experience some degree of suffering, which must be ‘validated’ in some form by the healthcare system. This validation is required for both functional and non-functional conditions. Functional conditions are validated by distinguishing between statistically normal and abnormal functioning. Similarly, for non-functional conditions, statistical normality represents a potential method for distinguishing between what should and should not be publicly funded. However, we acknowledge that such a concept requires further development. (shrink)

This article considers Dworkin's influential argument against legislative intent in chapter 9 of Law's Empire. The argument proves much less than is often assumed for it fails to address the possibility that the institution of the legislature may form and act on intentions. Indeed, analysis of Dworkin's argument lends support to that possibility. Dworkin aims to refute legislative intent in order to elucidate his own theory of statutory interpretation. That theory fails to explain plausibly legislative action. Dworkin's argument does not (...) refute legislative intent but instead suggests there is reason to think that the legislature is capable of intentional action. (shrink)

According to the Standard Picture of how law works, the content of the law that is created by legal texts such as statutes and constitutional provisions is determined by the meaning of these texts. Most proponents of this picture claim more specifically that the relevant notion of meaning in play is the communicative content of legal texts and that communicative content is itself determined by considerations of the intentions of legal authorities. In recent years, the Standard Picture has become the (...) subject of heated philosophical debate. Focusing on statutes as the paradigmatic type of legal texts, this thesis aims to contribute to this debate in two central ways. First, it argues that the aforementioned ‘intention-based’ versions of the Standard Picture lack convincing responses to three important objections that have been raised by critics. First, they lack an adequate account of how legislative bodies can be reasonably ascribed the intentions that they would need according to such versions. Second, they fail to explain important aspects of legal practice. Third, they provide at best a parochial theory of the content of the law that is generated by statutes. The second contribution is to provide a more sustained defence of the Standard Picture by developing a new ‘commitment-based’ version of this view. This version is based on an alternative theory of communication and claims that communicative content is not determined by considerations of intentions but rather by the commitments that are incurred by means of communicative acts. It is argued that this version can deal with the objections that have been raised by critics and therefore provides a more robust version of the Standard Picture. (shrink)

This article analyzes the epistemological aims and justification of character education legislation passed by the North Carolina General Assembly. I take this specific state law as representative of the broader national trends in the character education movement. I primarily use the work of Richard Rorty as the theoretical lens for the analysis and critique. I conclude by commending aspects of the legislative effort, but I suggest that greater emphasis must be placed on strengthening students' ethics through democratic action inside (...) and outside schools and not on a right-leaning, conservative, and didactic curriculum. Further, as social foundations educators, it is imperative to make strides in our classrooms to expose preservice teachers to the apparent and hidden contradictions of using character education as a tool of educational reform. (shrink)

HIV-related state laws are being created transnationally though the use of omnibus model laws. In 2004, the US Agency for International Development funded the creation of one such guidance text known as the USAID/Action for West Africa Region Model Law, or N'Djamena Model Law, which led to the rapid spread of HIV/AIDS laws, including the criminalisation of HIV transmission, across much of West and Central Africa . In this article, I explicate how an epidemic of highly problematic legislation spread (...) across the region as a result of a text-mediated work process enabled through model laws. I theorise the textual genre of model laws arguing that these texts are best understood as ‘preoperative documents’ which, when activated, can lead to swift legislative reform in and beyond the field of HIV/AIDS governance. The legislative process being investigated was made visible through participant observation, archival research, textual analysis and informant interviews with national and international stakeholders . This involved ethnographic research in Canada, the USA, Switzerland, Austria, South Africa and Senegal . The untold policy processes and narratives explored in this article make evident how the work of contesting problematic HIV/AIDS model laws and newly drafted state laws involves both creating new texts and contesting the legitimacy and efficacy of others. (shrink)

Purpose of this article is to tell foreign readers about novels made in Russian intellectual property law in 2014. As is known modern Russian revolution in the field of intellectual property legislation occurred January 1, 2008 when Russian intellectual property legislation was codified, included in the text of part fourth of the Civil Code of the Russian Federation. Part fourth of the Russian CC entered into force on January 1, 2008. At the same day seven sectoral intellectual property (...) laws were repealed. Second Revolution in this field took place during 2014: Federal law №35-FZ, 2014, substantially amending the Fourth part on the CC, entered into force on October the 1st of 2014. Scientific aim: The essence and evaluation of these amendments is the subject matter of this paper. Methods: The research is based on the analysis of the new amendments and articles added to the part fourth of the CC. Findings: Codification of the sectoral legislation en bloc in CC is a unique phenomenon. The author believes that such a construction of intellectual property law was made correctly and at the proper time. Factually the Federal Law №35-FZ is the eleventh law amending the text of the part fourth of the CC. But all previous amendments were small and not substantial. As far as amendments introduced by the law №35-FZ are concerned, they are numerous and very, very substantial. Before entering into force of the law №35-FZ, the Part fourth of the CC contained 328 articles. The law 35-FZ amends 169 articles of it and adds seven new articles. I am convinced that the law is a rather big step towards building a modern system of intellectual property legislation in Russia. Conclusions: More than 150 amendments were introduced by the law №35-FZ. Author estimates about 80% of them as positive and about 20% as negative and erroneous. These amendments do not contradict the international intellectual property agreements signed by the Russian Federation. Generally their purpose is to enhance and clarify the Russian intellectual property legislation and to narrow the gap between Russian and European intellectual property laws. The author of this article deals with intellectual property laws more than 50 years on. This paper is a short English version of various articles on this topic published in Russian, in journals: «The business and the law» and «The patents and licenses». (shrink)

0n a lucid, concise volume, Jeremy Waldron defends the role of legislation, presenting it as an important mode of governance. Aristotle, Locke and Kant emerge as proponents of the dignity of legislation. Waldron's arguments are of obvious importance and topicality, especially in countries that are considering the introduction of a Bill of Rights. The Dignity of Legislation is original in conception, trenchantly argued and very clearly presented, and will be of interest to a wide range of scholars (...) and thinkers. (shrink)

This chapter contains section titled: Images of Legislation Legislation in Legal Theory Analytics of the Legislative Process Interpreting and Applying Legislation A Forum of Principle? References.

Kant famously insisted that “the idea of the will of every rational being as a universally legislative will” is the supreme principle of morality. Recent interpreters have taken this emphasis on the self-legislation of the moral law as evidence that Kant endorsed a distinctively constructivist conception of morality according to which the moral law is a positive law, created by us. But a closer historical examination suggests otherwise. Kant developed his conception of legislation in the context of his (...) opposition to theological voluntarist accounts of morality and his engagement with conceptions of obligation found in his Wolffian predecessors. In order to defend important claims about the necessity and immediacy of moral obligation, Kant drew and refined a distinction between the legislation and authorship of the moral law in a way that precludes standard theological voluntarist theories and presents an obstacle to recent constructivist interpretations. A correct understanding of Kant's development and use of this distinction reveals that his conception of legislation leaves little room for constructivist moral anti-realism. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject who is granted (...) such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

In April 1999, Dr. Curt Freed of the University of Colorado in Denver and Dr. Stanley Fahn of Columbia Presbyterian Center in New York presented the results of a four-year, $5.7 million government-financed study using tissue from aborted fetuses to treat Parkinson’s disease at a conference of the American Academy of Neurology. The results of the first government-financed, placebo-controlled clinical study using fetal tissue showed that the symptoms of some Parkinson’s patients had been relieved. This research study involved forty subjects, (...) nineteen women and twenty-one men; all suffered from Parkinson’s disease for an average of 13.5 years. In the study, each subject underwent neurosurgery: “four tiny burr holes, drilled through the wrinkle lines above the eyebrows into the skull, to clear a pathway to the brain. But only half received injections of fetal cells into the putamen, the region of the brain that controls movement; the other half received nothing. One year later, three members of the placebo group said their symptoms had improved.” In two-thirds of the transplant recipients, the fetal tissue took hold and seemed to establish a new network to produce the missing neurochemical dopamine. (shrink)

Transgender people have among the highest rates of suicide attempts of any group in society, driven strongly by the perception that they do not belong in the sex of their physical body. Gender reassignment surgery is a procedure that can change the transgender person’s physical body to accord with their gender identity. The procedure raises important ethical and distributive justice concerns, given the controversy of whether it is a cosmetic or medical procedure and the economic costs associated with performing the (...) procedure. This paper argues that there is a strong case for funding GRS as a matter of clinical necessity and justice. This paper will be divided in four key sections: First, the state of transgender health will be outlined, including the role of GRS and common objections to it. Second, a number of common objections to GRS will be analysed at the outset and shown to be unconvincing. Third, a constructive argument will be advanced, arguing that publicly funded GRS is clinically necessary, cost-effective, and demanded by principles of justice. Fourth, the paper will briefly discuss moralistic biases and why we demand a higher burden of justification for funding GRS compared with other analogous procedures. (shrink)

This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonizing Kant’s ethical and juridical theories. It clarifies some key Kantian concepts and terms, then explains the way in which the state’s three interlocking authorities – legislative, executive, and judicial – are metaphysically distinct and mutually dependent. It describes the emergence of the Kantian state and identifies the preconditions of its authority. Then it offers a metaphysical model of (...) the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. I argue that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does not threaten the possibility of ‘distributive justice’ – the legal finality that is the sine qua non of a civil condition. (shrink)

A comprehensive account of English legal thought in the age of Blackstone and Bentham for nearly a century, The Province of Legislation Determined advances an ambitious reinterpretation of eighteenth-century attitudes to social change and law reform. Professor Lieberman's bold synthesis rests on a wide survey of legal materials and on a detailed discussion of Blackstone's Commentaries, the jurisprudence of Lord Kames and the Scottish Enlightenment, the chief justiceship of Lord Mansfield, the penal theories of Eden and Romilly, and the (...) legislative science of Jeremy Bentham. The study relates legal developments to the broader fabric of eighteenth-century social and political theory, and offers a novel assessment of the character of the common law tradition and of Bentham's contribution to the ideology of reform. (shrink)

Researchers have consistently identified the disparity between teachers’ practical and legal knowledge regarding teachers’ right to discipline students. However, few studies have investigated teachers’ construction processes that form construction outcomes, which would help navigate the role of legislation in school discipline. This study contributes to a holistic picture of the neglected disciplinary rights that teachers construct in teaching practice and their underexplored attitude toward the law, using an interview-based constructionist method on twelve teachers of Lvliang city in a Chinese (...) K-12 context. The findings suggest that the participants prefer to acquire discipline knowledge by interacting with multiple power relations in their local environment and that their knowledge is historically and culturally specific. Although the disciplinary right they construct is never static, balanced, or essentialised, the participants’ constructions are commonly not in line with legal provisions or the aims of the law. Furthermore, school discipline legislation plays a silent role in empowering teachers to discipline students, but it is more visible in holding back teachers’ use of corporal punishment. These findings illustrate the complexity of implementing school disciplinary law as a universal national policy. (shrink)

In Rousseau’s political theory, the Legislator’s task is to draft the best possible Constitution for a given people. His goal is to maintain the public liberties and to ensure the preservation and prosperity of the State. However, the main problem is “to put law above men” – that is: above the citizens in general and the members of the executive in particular. This paper examines how the Legislator takes up the problem by educating the citizens. The process of education implies (...) the development of reasonable thinking as well as the education of desire. Reasonable thinking is achieved through the formation of the general will. Education of human desire must be understood with respect to the distinction between amour-propre and amour-de-soi. The extension of amour-de-soi to a communityof fellow citizens plays a central role in the formation of the general will and contributes to the development of solidarity among the different social classes. Education of amour-propre plays a role in the development of a national identity. It plays also a role in the political governance of individual desires by means of an administration based on a hierarchy of functions, supervised by public opinion. However, the political governance of desire is challenged by the invisible power of money, which Rousseau tried to neutralize by limiting and slowing down the monetary circulation. (shrink)

There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention (...) of the legislature—roughly, what the legislature intended to imply. The purpose of this article is to present some new reasons to doubt linguistic intentionalism and to offer an alternative for a particular kind of implied statutory meaning that some philosophers of language call implicitures. Rather than legislative intention, the meaning of implicitures is metaphysically determined by intention-free pragmatic linguistic norms, the grasp of which is part of the language competence of ordinary law subjects. The use of these norms, in combination with certain facts about background social practices and other conventions, generates implicitures that may be inconsistent with actual communicative intentions. These intention-free pragmatic norms, and the implicitures they generate, are explanatorily prior to the fact—if there is such a fact—of what impliciture it is reasonable to infer that the enacting legislature (or the legislators collectively) intended. Reference to legislative linguistic intention (actual or reasonably imputed) is thus explanatorily inert. (shrink)

In the last years of his life, Gerald C. MacCallum, Jr., defied illness to continue his work on the philosophy of law. This book is a monument to MacCallum’s effort, containing fourteen of his essays, five of them published here for the first time. Two of those previously published are widely admired and reprinted: “Legislative Intent,” certainly one of the best papers ever published on its topic, and “Negative and Positive Freedom,” which offered a new way of looking at a (...) distinction that had been canonical for the last two centuries. To complete MacCallum’s unfinished pieces, Marcus G. Singer and Rex Martin painstakingly consulted MacCallum’s notes for planned revisions. MacCallum discusses legal reasoning, the application of rules, the interpretation of statutes and constitutional provisions, and the relation of these matters to morality and justice. In the last decade of his working life, he became greatly concerned with the interrelated themes of integrity, autonomy, conscience, and violence. He wished to relate competition to morality and justice to adversarial systems of law. These themes are woven together in Legislative Intent and constitute the main subject of some of the essays. MacCallum was engaged in a constant search for truth and understanding, and in his life and work lived up to Emerson’s vision of the “American Scholar” as a “human being thinking.” These essays are informed by the author’s deep curiosity, penetrating intelligence, wide knowledge, and outstanding character. They will be treasured wherever these characteristics and true philosophy are treasured. (shrink)

It would be unproblematically correct to say "the laws of Pennsylvania have it that a person is eligible to vote at age eighteen." But whether someone is actually mature enough to exercise his electoral franchise appropriately will very much depend on the individual. In setting the voting age by fiat, Society leaps in where Nature fears to tread. Many quantities that figure importantly in shaping our conduct of affairs are not specified by nature but are artifacts of human contrivance. At (...) what age, for example, is a person old enough to marry, drink alcoholic beverages responsibly, handle fireworks safely, manage his own property, enter into contracts, see a violent movie, serve on a jury, or hold a public office? These are not quantities writ large in nature's impersonal scheme of things but matters of social decision made for reasons of public polity and administrative convenience. They are legislated quantities. (shrink)

This book discusses how Plato, one the fiercest legal critics in ancient Greece, became – in the longue durée – its most influential legislator. Making use of a vast scholarly literature, and offering original readings of a number of dialogues, it argues that the need for legal critique and the desire for legal permanence set the long arc of Plato’s corpus—from the Apology to the Laws. Modern philosophers and legal historians have tended to overlook the fact that Plato was the (...) most prolific legislator in ancient Greece. In the pages of his Republic and Laws, he drafted more than 700 statutes. This is more legal material than can be credited to the archetypal Greek legislators—Lycurgus, Draco, and Solon. The status of Plato’s laws is unique, since he composed them for purely hypothetical cities. And remarkably, he introduced this new genre by writing hard-hitting critiques of the Greek ideal of the sovereignty of law. Writing in the milieu in which immutable divine law vied for the first time with volatile democratic law, Plato rejected both sources of law, and sought to derive his laws from what he called ‘political technique’. At the core of this technique is the question of how the idea of justice relates to legal and institutional change. Filled with sharp observations and bold claims, Platonic Legislations shows that it is possible to see Plato—and our own legal culture—in a new light “In this provocative, intelligent, and elegant work D. L. Dusenbury has posed crucial questions not only as regards Plato’s thought in the making, but also as regards our contemporaneity.”—Giorgio Camassa, University of Udine “There is a tension in Greek law, and in Greek legal thinking, between an understanding of law as unchangeable and authoritative, and a recognition that formal rules are often insufficient for the interpretation of reality, and need to be constantly revised to match it. Dusenbury’s book illuminates the sophistication of Plato’s legal thought in its engagement with this tension, and explores the potential of Plato’s reflection for modern legal theory.”—Mirko Canevaro, The University of Edinburgh. (shrink)

Battles against domestic violence in the People’s Republic of China have been carried out since 1995. In this study, legislative progression of laws related to domestic violence is first examined and clarified; second, findings from the legislative review are investigated on the basis of civil and criminal cases; third, the interaction among social and traditional norms, legislation, and judicial outcomes is explored and interpreted from a sociosemiotic perspective. It is found in this study that: 1) legislation and judicial (...) practices of domestic violence in the P. R. C. are closely intertwined with social and traditional norms; 2) there is a gap between judicial practices dealing with domestic violence and the legislation; 3) the Anti-Domestic Violence Law offers a notch for state powers to embrace the familial relationship and to safeguard a victim. (shrink)

On September 22, 1998, California Governor Pete Wilson signed Senate Bill 1785 into law, dramatically affecting the entire California animal sheltering community. Dubbed the "Hayden law" by the animal protection community after the bill's sponsor, it represents the state of California's attempt to legislate a solution to both the companion animal overpopulation problem and the friction between the agencies trying to end it. The persistence of the bill's primary supporters, a Los Angeles veterinarian and a UCLA law school professor and (...) the overall lack of opposition to it helped SB 1785 sail through the California legislature. Because of the scope of the bill and the immense cost of implementation, its passage shocked many in the sheltering community. This case study highlights the consequences of legislation that was crafted based on worse case scenarios and over which there was little collaborative effort. It concludes with suggestions that might be useful to other states contemplating similar such legislation. (shrink)

Excerpt from Traites de Legislation Civile Et PenaleMais ce n'est pas un panegyrique que je fais. Il faut bien avouer que le soin d'arranger et de polir a peu d' attraits pour le genie de l'auteur. Tant qu'il est pousse par une force creatrice, il ne sent que le plaisir de la composition. S'agit-il de donner des formes, de rediger, de finir, il n'en sent plus que la fatigue. Que l'ouvrage soit interrompu, le mal est irreparable: le charme disparait, (...) le degout succede, et la passion eteinte ne se rallume que pour un objet nouveau.La meme disposition l'a eloigne de contribuer a la redaction que je donne au public; je n'ai pu Obtenir que rarement les eclaircissements et les secours dont j'avais besoin il lui en coutait tr0p de suspendre le cours actuel de ses idees pour revenir sur d'anciennes traces.About the PublisherForgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.comThis book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works. (shrink)

Natural death act legislation which is intended to assist patients who wish to refuse or limit medical treatment may actually erode patients' rights. By use of a 'living will' the legislation intends to extend the patients' role in decision-making to the time when patients can no longer speak for themselves. However, the legislation erodes and constricts the right of refusal. The erosion is the result of two sets of conditions found in the legislation. The first requires (...) that the patient be qualified and certified by others before interventions can be withdrawn or withheld. The second delineates the physical condition which must be present before a living will can be followed. Patients have had to seek the assistance of the courts to enforce their common law rights of refusal of treatment against these requirements. Legislation is needed, but greater care must be taken to avoid the creation of a Kafkaesque legal nightmare for those we intend to assist. (shrink)

ABSTRACT Legislative sovereignty is often discussed with one eye on the past and one eye on the procedural functions of law-making in the present. This limits the scope for a conceptual understanding of legislative sovereignty and hinders its theoretical progress. This article argues that legislative sovereignty contains within it the concept of an idol and that understanding the scope and impact of the idol of sovereignty is necessary for future development in this field. Theories from Kant, Nietzsche, von Mises and (...) Derrida are used to offer a divergent critique of legislative sovereignty while the author calls for a move towards a nuanced view of legislative and Parliamentary Sovereignty to account for its idolism. The key factor preventing the development of a truly nuanced and reflective theory of sovereignty is the devotion to former idols which are inoperable and inconsistent with modern geopolitical, inter-state relationships. The author also argues that our knowledge of sovereignty is synthetic a priori and that development in this area can only be by reason, as knowledge derived experientially is subject to the Kantian Transcendental Idealism. (shrink)

The phenomenon of domestic violence is as old as humanity itself, but legal protection against violence both internationally and nationally begins to be provided very late. In the Republic of North Macedonia, until 2004, there was no legal protection of victims of domestic violence, nor was adequate sanctioning of perpetrators. Only since 2004, with the amendments and additions to the Criminal Code in the criminal sphere, and the Law on the Family in the civil sphere, the phenomenon of domestic violence (...) began to receive due legal attention, with the application of provisions for the sanctioning of perpetrators and temporary measures protection for victims. The adoption of the Istanbul Convention (The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence) and its ratification in 2018 undoubtedly contributed to the Republic of North Macedonia undertaking a series of reforms in the field of domestic violence. So initially, in 2021, the new Law on domestic violence was adopted in harmony with the principles of the Istanbul Convention, whereas in 2023 the Law on the amendment of the Criminal Code was adopted. This law focused on changes in criminal offenses related to domestic violence and gender-based violation, as well as the incorporation of new criminal offenses in this regard. These legislative reforms, especially the amendments approved in February 2023 which are of particular importance in the prevention and fight against domestic violence and violence against women in the Republic of North Macedonia are the focus of this research. Here we have analyzed and commented the approved changes to the Criminal Code of RNM. (shrink)